As filed with the United States Securities and Exchange Commission December 30,
1998.
Registration No. 333-68563
===============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
=====================================
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
==========================================================
STEWART ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
LOUISIANA 110 VETERANS MEMORIAL BOULEVARD 72-0693290
(State or other METAIRIE, LOUISIANA 70005 (I.R.S. Employer
jurisdiction of (504) 837-5880 Identification Number)
incorporation (Address, including zip code, and
or organization) telephone number,including area code,
of registrant's principal executive offices)
JOSEPH P. HENICAN, III COPY TO:
CHIEF EXECUTIVE OFFICER AND L. R. MCMILLAN, II
VICE CHAIRMAN OF THE BOARD JONES, WALKER, WAECHTER,
STEWART ENTERPRISES, INC. POITEVENT, CARRERE & DENEGRE, L.L.P.
P.O. BOX 19925 201 ST. CHARLES AVENUE, 51ST FLOOR
NEW ORLEANS, LOUISIANA 70179 NEW ORLEANS, LOUISIANA 70170-5100
(504) 837-5880 (504) 582-8188
(Name, address, including zip code,
and telephone number, including
area code, of agent for service)
==========================================================================
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration statement
==========================================================================
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933 (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, please check the
following box. X
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.
_________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of each Amount offering aggregate Amount of
class of securities to be price per offering registration
to be registered registered(1) unit(2) price(2) fee(3)
<S> <C> <C> <C> <C>
Class A Common Stock(4)
Preferred Stock $250,000,000 100% $250,000,000 ----
Debt Securities
</TABLE>
(1) SUCH INDETERMINATE PRINCIPAL AMOUNT OF DEBT SECURITIES, AND SUCH
INDETERMINATE NUMBER OF SHARES OF CLASS A COMMON STOCK AND PREFERRED
STOCK AS MAY FROM TIME TO TIME BE ISSUED AT INDETERMINATE PRICES. SUCH
AMOUNT REPRESENTS THE PRINCIPAL AMOUNT OF ANY DEBT SECURITIES ISSUED AT,
OR AT A PREMIUM TO, THEIR PRINCIPAL AMOUNTS, THE ISSUE PRICE RATHER THAN
THE PRINCIPAL AMOUNT OF ANY DEBT SECURITIES ISSUED AT AN ORIGINAL ISSUE
DISCOUNT, THE STATED VALUE OF ANY PREFERRED STOCK, AND THE AMOUNT
COMPUTED PURSUANT TO RULE 457(C) FOR ANY CLASS A COMMON STOCK.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE;
CERTAIN INFORMATION REGARDING THE PROPOSED MAXIMUM OFFERING PRICES HAS
BEEN OMITTED PURSUANT TO INSTRUCTION II.D OF FORM S-3 AND WILL BE
DETERMINED FROM TIME TO TIME BY THE REGISTRANT IN CONNECTION WITH ITS
ISSUANCE OF THE SECURITIES REGISTERED HEREUNDER.
(3) THE REGISTRANT PAID A REGISTRATION FEE OF $69,500 IN CONNECTION WITH THE
INITIAL FILING OF THIS REGISTRATION STATEMENT. PURSUANT TO RULE 429
UNDER THE SECURITIES ACT, THE PROSPECTUS INCLUDED IN THIS REGISTRATION
STATEMENT ALSO RELATES TO $500,000,000 OF CLASS A COMMON STOCK, PREFERRED
STOCK AND DEBT SECURITIES PREVIOUSLY REGISTERED ON FORM S-3 (FILE NO.
333-59339) FOR WHICH A REGISTRATION FEE OF $147,500 WAS PREVIOUSLY PAID.
(4) INCLUDES 2,000,000 SHARES OF CLASS A COMMON STOCK THAT MAY BE OFFERED BY
SELLING SHAREHOLDERS FROM TIME TO TIME AT INDETERMINATE PRICES. ALSO
INCLUDES SUCH INDETERMINATE NUMBER OF SHARES OF CLASS A COMMON STOCK AS
MAY BE ISSUED UPON CONVERSION OF OR EXCHANGE FOR ANY CLASS OR SERIES OF
PREFERRED STOCK THAT PROVIDES FOR CONVERSION OR EXCHANGE INTO CLASS A
COMMON STOCK.
________________
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, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO
SECTION 8(A), MAY DETERMINE.
Pursuant to Rule 429 under the Securities Act, the prospectus included in
this registration statement also relates to $500,000,000 of Class A Common
Stock, Preferred Stock and Debt Securities previously registered under the
registrant's registration statement on Form S-3 (file no. 333-59339), which was
declared effective on July 29, 1998. This registration statement also
constitutes post-effective amendment no. 1 to registration statement no. 333-
59339.
EXPLANATORY NOTE REGARDING PROPOSED OFFERING OF CLASS A COMMON STOCK
The registrant is contemplating a firm commitment underwritten offering
in late January 1999 of approximately $300,000,000 of class A common stock
registered pursuant to this registration statement and our earlier registration
statement (no. 333-59339). Additionally, Frank B. Stewart, Jr., the chairman
of our board of directors, has advised us that a trust formed by him may
participate in the offering by offering and selling approximately $15,000,000
of class A common stock. The registrant will not receive any of the proceeds
from the sale by the selling shareholder. The registrant intends to use the net
proceeds received by it to fund acquisitions and for general corporate
purposes. Pending use for such purposes, the registrant intends to use the net
proceeds to repay debt or to invest in short-term interest bearing securities.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to completion, dated December 30, 1998
PROSPECTUS
$750,000,000
STEWART ENTERPRISES, INC.
CLASS A COMMON STOCK, PREFERRED STOCK, DEBT SECURITIES
=========================
We may offer securities from time to time in an aggregate amount not to
exceed $750,000,000. The securities may consist of any of the following:
* Shares of our class A common stock, which are currently traded under
the symbol "STEI" on the Nasdaq National Market
* Shares of our preferred stock
* Our debt securities consisting of debentures, notes or other
evidences of indebtedness ranking equally with all of our other
unsubordinated and unsecured indebtedness
In addition, Frank B. Stewart, Jr., the chairman of our board of directors,
may offer and sell, and, with our consent, his transferees and successors in
interest may offer and sell, up to 2,000,000 shares of our class A common stock
from time to time.
We will receive all of the net proceeds from the sale of securities offered
by us. We will not receive any proceeds from the sale of class A common stock
by selling shareholders.
The securities may be offered separately or together, in one or more series
or classes, in amounts, at prices and on terms to be determined at the time of
sale and set forth in a prospectus supplement that will accompany this
prospectus. The specific terms of the offered securities will be described in
the prospectus supplement.
We and the selling shareholders may sell securities directly to one or more
purchasers or to or through underwriters, dealers or agents. If any
underwriters, dealers or agents are involved in the sale of securities, the
accompanying prospectus supplement will set forth their names, the principal
amounts, if any, to be purchased by underwriters, any applicable fees,
commissions or discounts, and the net proceeds to be received by us and the
selling shareholders.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or passed on the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement.
The date of this prospectus is , 199 .
===========================
<PAGE>
Certain persons participating in this offering may engage in transactions
that stabilize, maintain or otherwise affect the price of our securities
including over-allotment, stabilizing and short-covering transactions and the
imposition of penalty bids. Certain persons participating in this offering may
also engage in passive market making transactions in our securities on the
Nasdaq National Market.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). You
can inspect and copy that information at the public reference room of the
Commission at 450 Fifth Street, NW, Washington, D.C. 20549. You may call the
Commission at 1-800-SEC-0330 for more information about the public reference
room. The Commission also maintains an Internet site that contains reports,
proxy and information statements and other information regarding registrants,
like us, that file reports with the Commission electronically. The
Commission's Internet address is http://www.sec.gov.
We have filed a registration statement and related exhibits with the
Commission under the Securities Act of 1933, as amended. The registration
statement contains additional information about us and our securities. You may
inspect the registration statement and exhibits without charge at the
Commission's public reference room, and you may obtain copies from the
Commission at prescribed rates.
The Commission allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to you by
referring to documents on file with the Commission. Certain information that
we currently have on file is incorporated by reference and is an important part
of this prospectus. Certain information that we file later with the Commission
will automatically update and supersede this information.
We incorporate by reference the following documents that we have filed with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"):
* Annual Report on Form 10-K for the fiscal year ended October 31,
1997 (filed January 29, 1998);
* Description of our class A common stock set forth in our
Registration Statement on Form 8-A dated September 5, 1991;
* Quarterly Reports on Form 10-Q for the quarter ended January 31,
1998 (filed March 17, 1998); for the quarter ended April 30, 1998 (filed
June 15, 1998); and for the quarter ended July 31, 1998 (filed September
14, 1998);
* Current Reports on Form 8-K, dated December 17, 1997 (filed December
18, 1997); dated March 10, 1998 (filed March 10, 1998); dated April 8,
1998 (filed April 9, 1998); dated April 17, 1998 (filed April 17, 1998);
dated April 21, 1998 (filed April 24, 1998); dated May 15, 1998 (filed
May 15, 1998); dated June 9, 1998 (filed June 10, 1998); dated
September 9, 1998 (filed September 11, 1998); and dated December 15,
1998 (filed December 18, 1998); and
* All documents filed by us with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and prior to the termination of this offering.
At your request, we will provide you with a free copy of any of these
filings (except for exhibits, unless the exhibits are specifically incorporated
by reference into the filing). You may request copies by writing or
telephoning us at:
Stewart Enterprises, Inc.
110 Veterans Memorial Boulevard
Metairie, Louisiana 70005
Attention: Martin R. deLaureal
(504) 837-5880
You should rely only on information incorporated by reference or provided in
this prospectus and any prospectus supplement. We have not authorized anyone
else to provide you with different information.
THE COMPANY
We are the third largest provider of funeral and cemetery products and
services in the death care industry in North America. We currently operate
funeral homes and cemeteries in North America, South America, Europe and the
Pacific Rim. We provide a complete range of death care products and services
both at and prior to the time of need. We are a leader in the industry's trend
toward consolidation. Our growth in terms of number of properties has been
principally through acquisitions.
We believe that we operate one or more of the premier death care facilities
in each of our principal markets. We also believe that we are an industry
leader in the marketing and sale of prearranged funeral and cemetery services
and products.
Generally, we integrate the operations of clusters of nearby funeral homes
and cemeteries in order to achieve operating efficiencies. We also create
combined operations by building funeral homes on our cemetery properties and
operating both facilities together.
We have an experienced management team, many of whom joined us through
acquisitions. Our decentralized organizational structure allows our local
funeral home directors and cemetery managers to best serve the needs of their
particular markets.
Our ultimate goal is to enhance shareholder value. To achieve this goal, we
have three principal objectives:
* Provide the highest level of quality, service and value to each
family we serve
* Attract, retain and reward highly qualified individuals to
operate our businesses
* Provide an above average and sustainable return to our
shareholders
The Stewart family founded our business in 1910 and we were formed as a
Louisiana corporation in 1970. The address and telephone number of our
principal executive offices is:
110 Veterans Memorial Boulevard
Metairie, Louisiana 70005
(504) 837-5880
USE OF PROCEEDS
Unless otherwise described in the accompanying prospectus supplement, we
will use the net proceeds from the sale of securities for general corporate
purposes, which may include the repayment of indebtedness, acquisitions,
capital expenditures and working capital. We will not receive any proceeds
from the sale of class A common stock by selling shareholders.
SELLING SHAREHOLDERS
Frank B. Stewart, Jr., the chairman of our board of directors, may use this
prospectus to offer and sell shares of class A common stock. With our consent,
his transferees and successors in interest, including the Frank B. Stewart, Jr.
Foundation mentioned in footnote (1) below, may do the same. The maximum
aggregate number of shares that may be sold by the selling shareholders is
2,000,000 shares.
As of December 4, 1998, Mr. Stewart's beneficial ownership of our common
stock was as follows:
NUMBER PERCENT
OF SHARES OF CLASS
----------- ----------
Class A 7,772,372(1) 8.2%
Class B 3,555,020 100.0%
_______
(1)Includes 453,800 shares owned by the Frank B. Stewart, Jr. Foundation (a
non-profit corporation), with respect to which Mr. Stewart shares voting and
investment power.
_______________
By virtue of that ownership, Mr. Stewart held approximately 33.3% of the voting
power attributable to our common stock.
In the case of an offering of class A common stock by selling shareholders,
a prospectus supplement will disclose:
* The identity of the selling shareholders
* The number of shares of class A common stock offered by the
selling shareholders
* The amount and percentage of class A common stock to be owned by
each selling shareholder following the offering
* The percentage voting power to be held by each selling
shareholder following the offering
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges was as follows for the years and
period indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEARS ENDED OCTOBER 31, JULY 31,
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1993 1994 1995 1996 1997 1998
5.15 5.30 2.72(1) 3.98 3.65(2) 1.94(3)
</TABLE>
_______
(1)Pretax earnings from continuing operations for fiscal year 1995 includes a
non-recurring, non-cash charge of $17.3 million in connection with the
vesting of performance-based stock options. Excluding the charge, our ratio
of earnings to fixed charges for fiscal year 1995 would have been 3.43.
(2)Excludes the cumulative effect of a change in accounting principles.
(3)Pretax earnings from continuing operations for the nine months ended July
31, 1998 includes a non-recurring, non-cash charge of $76.8 million in
connection with the vesting of performance-based stock options. Excluding
the charge, our ratio of earnings to fixed charges for the period would have
been 4.26.
_______________
For purposes of computing the ratio of earnings to fixed charges, earnings
consists of pretax earnings from continuing operations plus fixed charges
(excluding interest capitalized during the period). Fixed charges consist of
interest expense, capitalized interest, amortization of debt expense and
discount or premium relating to any indebtedness, and the portion of rental
expense that management believes to be representative of interest.
During the periods presented, we had no preferred stock outstanding.
Therefore, the ratio of earnings to combined fixed charges and preference
dividends was the same as the ratio of earnings to fixed charges for each of
the periods presented.
DESCRIPTION OF CLASS A COMMON STOCK
GENERAL
As of the date of this prospectus, our articles of incorporation authorized
us to issue up to 150,000,000 shares of class A common stock and 5,000,000
shares of class B common stock. As of December 4, 1998, 94,472,844 shares of
class A common stock and 3,555,020 shares of class B common stock were
outstanding.
CLASS A AND CLASS B COMMON STOCK
Voting Rights. With respect to all matters submitted to a vote of our
shareholders, the record holders of class A common stock have one vote per
share and the record holders of class B common stock have ten votes per share.
Except in limited circumstances, the holders of the class A and class B common
stock vote together as a single class.
Our articles of incorporation do not provide for cumulative voting in the
election of directors. Accordingly, the holders of more than 50% of the total
voting power can, if they choose to, elect all of our directors. As of
December 4, 1998, Frank B. Stewart, Jr., the chairman of our board of
directors, held approximately 33.3% of the total voting power attributable to
our common stock.
Other Rights. Subject to the rights of the holders of any outstanding
shares of preferred stock, holders of class A and class B common stock may
receive such dividends, in cash, securities or property, as may from time to
time be declared by our board of directors. In the event of a voluntary or
involuntary liquidation, dissolution, or winding up of our company, prior to
any distributions to the holders of our common stock, the holders of preferred
stock will receive any payments to which they are entitled. Subsequent to
those payments, the holders of our class A and class B common stock will share
ratably, according to the number of shares held by them, in our remaining
assets, if any. Shares of our class A and class B common stock are not
redeemable and have no subscription, conversion (except as described below) or
preemptive rights.
Transferability and Convertibility. The class A common stock is freely
transferable. The transfer of class B common stock is prohibited by our
articles of incorporation unless such stock is transferred to a "permitted
transferee." A permitted transferee is defined in our articles of
incorporation to include, among others, the spouse, lineal descendants and
executor of any authorized holder of class B common stock.
Our articles of incorporation provide that each share of class B common
stock is convertible at any time at the option of the record holder into one
share of class A common stock. A shareholder wishing to sell class B common
stock may convert the class B common stock into class A common stock and sell
the shares of class A common stock. Upon transfer to any person other than a
permitted transferee, shares of class B common stock will be converted
automatically into an equal number of shares of class A common stock. When
converted, shares of class B common stock will be canceled and may not be
reissued.
DESCRIPTION OF PREFERRED STOCK
Our articles of incorporation authorize us to issue up to 5,000,000 shares
of preferred stock. As of the date of this prospectus, no shares of preferred
stock were outstanding. Our board of directors may at any time issue one or
more series of preferred stock, determine the designation and size of any such
series, and establish the rights and preferences of the shares of any series.
The particular terms of any series of preferred stock offered hereunder will be
set forth in an amendment to our articles of incorporation (which will not
require the approval of our shareholders) and described in a prospectus
supplement.
The summary of terms of our preferred stock contained in this prospectus is
not complete. We urge you to read the provisions of our articles of
incorporation and the articles of amendment relating to each series for a more
complete description of our preferred stock.
If we choose to issue preferred stock, our board of directors will
determine, and the applicable prospectus supplement will describe:
* The respective preferences, limitations and relative rights of
the series of preferred stock as compared with the class A and class B
common stock
* Variations in the preferences, limitations and relative rights of
the series of preferred stock being offered as compared with any other
series of preferred stock then outstanding
DESCRIPTION OF DEBT SECURITIES
The debt securities will be issued under an Indenture dated as of December
1, 1996, between us and Citibank, N.A., as trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of April 24, 1998,
between us and the Trustee (as supplemented, the "Indenture"). The following
description of the debt securities sets forth certain general terms and
provisions of the debt securities to which any prospectus supplement may relate
("Offered Debt Securities"). The particular terms of the Offered Debt
Securities and the extent to which such general provisions may apply will be
described in a prospectus supplement relating to the Offered Debt Securities.
The following description is a summary of the material provisions of the
Indenture and the debt securities. It does not restate the Indenture in its
entirety. We urge you to read the Indenture because it, and not this
description, defines your rights as a holder of debt securities. We have filed
copies of the Indenture and will file copies of any supplemental indentures as
exhibits to the registration statements that include this prospectus.
In this summary description of the debt securities, we have used terms that
are defined in the Indenture, which terms are capitalized in this prospectus.
Wherever such terms are used or particular provisions of the Indenture are
referred to in this summary, such terms or provisions are incorporated by
reference as part of the statements made in this prospectus and this summary is
qualified in its entirety by such reference. The italicized parenthetical
references refer to the section numbers in the Indenture.
General. The Indenture does not limit the aggregate principal amount of debt
securities that can be issued under the Indenture. Debt securities may be
issued under the Indenture from time to time in one or more series, in such
form and with such terms as are established for such series in Board
Resolutions or supplemental indentures. (Sections 201 and 301) The aggregate
principal amount of debt securities currently outstanding under the Indenture
is $300,000,000. The aggregate principal amount of debt securities that may be
offered and sold pursuant to this prospectus is limited to $750,000,000, which
is the amount of securities registered under the registration statements that
include this prospectus. All debt securities will be our unsecured
obligations, will rank senior in priority to any of our subordinated
indebtedness, and will rank equally with all of our other unsecured
indebtedness.
We are a holding company and conduct substantially all of our business
through our Subsidiaries. Accordingly, our ability to meet our obligations
under the Indenture and the debt securities will depend primarily on the
earnings of our Subsidiaries and on our receipt of dividends or other payments
from our Subsidiaries. All of our Subsidiaries are permitted under the
Indenture to enter into agreements limiting their ability to make distributions
to us. Our obligations under the debt securities will not be guaranteed by any
of our Subsidiaries. Our rights to participate in any distribution of the
assets of our Subsidiaries upon their liquidation, reorganization or insolvency
would be subject to the prior claims of creditors, including trade creditors,
and preferred stockholders, if any, of such Subsidiaries, except to the extent
that our claims as a creditor or preferred stockholder may be recognized. As a
result, the debt securities will be structurally subordinated to any
indebtedness or preferred stock of our Subsidiaries. Except as described
below, the Indenture does not limit our, or our Subsidiaries', ability to incur
indebtedness, issue securities, enter into transactions with affiliates, make
distributions to stockholders, make investments or transfer assets to
Subsidiaries.
Unless otherwise indicated in a prospectus supplement, the debt securities
will not benefit from any covenant or other provision that would afford Holders
of such debt securities special protection in the event of either a change in
control or a highly leveraged transaction involving us, except for any such
protection provided by the provisions described below under "-Limitation on
Liens" or "-Limitation on Sale/Leaseback Transactions."
Reference is made to the prospectus supplement for the following terms of
the Offered Debt Securities:
* The title and aggregate principal amount of the Offered Debt
Securities
* The date or dates on which the Offered Debt Securities will
mature
* The rate or rates (which may be fixed or variable) per annum, if
any, at which the Offered Debt Securities will bear interest or the
method of determining such rate or rates
* The date or dates from which such interest, if any, will accrue,
the date or dates at which such interest, if any, will be payable and
the record date or dates for the interest payable on any Offered Debt
Securities on any interest payment date
* The place or places at which and the manner in which the
principal of, or premium or interest on, the Offered Debt Securities
will be payable and the place or places at which the Offered Debt
Securities may be surrendered for transfer or registration
* The price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Offered Debt Securities will be
offered
* The terms for redemption or early payment, if any, including any
mandatory or optional sinking fund or analogous provision, and (if
applicable) provisions relating to the assignment of our rights under
the Indenture
* Whether the Offered Debt Securities will be issued in fully
registered form or in bearer form or any combination thereof
* Whether the Offered Debt Securities will be issued in the form of
one or more global securities and whether such global securities are
to be issuable in temporary global form or permanent global form
* The denominations in which the Offered Debt Securities will be
issuable
* If other than U.S. dollars, the currency or currencies or
currency unit or units in which the Offered Debt Securities will be
denominated and in which the principal of, and premium, if any, and
interest on, the Offered Debt Securities will be payable
* Whether, and the terms and conditions on which, we or a Holder
may elect that payment of principal of, or premium or interest on,
such Offered Debt Securities is to be made in a currency or currencies
or currency unit or units other than that in which such Offered Debt
Securities are denominated
* If the amount of payments of principal of, or premium or interest
on, the Offered Debt Securities may be determined with reference to an
index, the manner in which such amounts shall be determined
* Information with respect to book-entry procedures, if any
* If the Offered Debt Securities are sold for any foreign currency
or currency unit or if the principal of, or premium or interest on,
the Offered Debt Securities is payable in any foreign currency or
currency unit, the restrictions, elections, tax consequences, specific
terms and other information with respect to such foreign currency or
currency unit
* Any other specific terms of the Offered Debt Securities (which
terms shall not be inconsistent with the provisions of the Indenture)
Reference is also made to the prospectus supplement for information with
respect to any additional covenants that may be included in the terms of the
Offered Debt Securities. (Section 301)
Offered Debt Securities may be sold at a discount (which may be substantial)
below their stated principal amount and may bear no interest or interest at a
rate which at the time of issuance is below market rates. Any material United
States federal income tax consequences and other special considerations
applicable thereto will be described in the prospectus supplement.
No service charge will be made for any registration of transfer or exchange
of the debt securities, but we may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. (Section
305)
The Indenture and the Offered Debt Securities will be governed by and
construed in accordance with the laws of the State of New York. (Section 113)
Limitation on Liens. The Indenture provides that we and our Subsidiaries
will not issue, create, incur, assume or suffer to exist any Lien securing Debt
on any property or asset without making effective provision whereby any and all
debt securities of any series then or thereafter outstanding will be secured by
a Lien equally and ratably with (or, at our option, prior to) any and all
obligations thereby secured for so long as any such obligations shall be so
secured. The foregoing restriction will not, however, apply to us and our
Subsidiaries with respect to:
(1) Liens existing on the date of the Indenture (or provided for in after-
acquired property clauses under the terms of agreements existing on such
date);
(2) Liens on any property or other assets to secure Debt incurred for the
purpose of:
(a) financing all or any part of the consideration used to acquire such
property or other assets and incurred prior to, at the time of, or
within 12 months after, such acquisition or
(b) financing all or any part of the cost of construction, improvement,
development or expansion of such property or other assets including,
without limitation, Liens to secure Debt incurred in connection with
the construction, installation or financing of pollution control or
abatement facilities or other forms of industrial revenue or
development bond financing, which Liens extend solely to the property
that is the subject thereof;
(3) Liens on any property or other assets existing at the time of
acquisition thereof by us or our Subsidiaries, including acquisition
through merger, consolidation or the purchase of property or other
assets, provided that such Liens do not extend to other property or our
assets or the assets of our Subsidiaries;
(4) Liens resulting from a judgment or award contested in good faith;
(5) Liens to secure Debt issued or guaranteed by the United States or any
state or any department, agency or instrumentality of the United States
or any state, which Liens extend solely to the property that is the
subject thereof;
(6) Liens upon receivables and other assets or properties and the proceeds
thereof that may be granted or arise in connection with the transfer,
securitization or factoring of some or all of our and our Subsidiaries'
receivables;
(7) Liens that secure only Debt owing to us by a Subsidiary or by us to a
Subsidiary or by a Subsidiary to another Subsidiary;
(8) Liens required by any contract or statute in order to permit us or any
of our Subsidiaries to perform any contract or subcontract made by it
with or at the request of the United States, any State or any
department, agency or instrumentality of either;
(9) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions or other social security
or retirement benefits or similar legislation;
(10)Liens imposed by law, such as carriers', warehousemen's, landlords',
materialmen's, repairmen's and mechanics' liens and other similar liens
arising in the ordinary course of business;
(11)Certain Liens for taxes, assessments or governmental charges or levies;
and
(12)Liens to secure Debt incurred to extend, refinance, renew, replace or
refund (or successive extensions, refinancings, renewals, replacements
or refundings) of any Debt secured by any Lien referred to in the
foregoing clauses so long as the principal amount of such Debt so
secured is not increased. (Section 1005)
Notwithstanding the foregoing, we and our Subsidiaries may, without equally
and ratably securing the debt securities of any series, issue, assume or
guarantee Debt secured by Liens in addition to those permitted by the foregoing
paragraph and renew, extend or replace such Liens, provided that the aggregate
principal amount of Debt so secured by any such Lien plus any Attributable Debt
(as defined below) does not at any one time exceed 15% of Consolidated Net
Tangible Assets as shown on our balance sheet as of the end of the most recent
fiscal quarter prior to the incurrence of the Debt for which a balance sheet is
available.
"Capitalized Lease Obligation" of any Person means any obligation that is
required to be classified and accounted for as a capital lease on a balance
sheet of such Person in accordance with generally accepted accounting
principles. (Section 101)
"Consolidated Net Tangible Assets" means the total amount of our assets and
the assets of our Subsidiaries (less applicable reserves and other properly
deductible items) on a consolidated basis after deducting therefrom: (1) all
current liabilities (excluding any thereof which are by their terms extendable
or renewable at the option of the obligor thereon to a time more than twelve
months after the time as of which the amount thereof is being computed) and (2)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
other like intangible assets. (Section 101)
"Debt" means (without duplication), with respect to us and our Subsidiaries,
(1) all of our obligations and the obligations of our Subsidiaries, whether
evidenced by bonds, debentures, notes or other similar instruments, for
repayment of borrowed money, provided, that if the Debt is nonrecourse, the
amount of Debt shall be limited to the value of the assets securing the Debt,
(2) all of our and our Subsidiaries' Capitalized Lease Obligations, (3) all
Debt of other Persons secured by a Lien on any of our or our Subsidiaries'
assets, whether or not such Debt is assumed by us or our Subsidiaries, and (4)
all Debt of other Persons guaranteed, directly or indirectly, by us or our
Subsidiaries to the extent of such guarantee. (Section 101)
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, charge, security interest, assignment, encumbrance,
conditional sale or other title retention agreement; provided, however, that
Lien shall not include a trust established for the purpose of defeasing any
Debt pursuant to the terms evidencing or providing for the issuance of such
Debt if the assets of such trust are limited to cash and U.S. Government
Obligations. (Section 101)
"Senior Indebtedness" means our Debt that ranks at least equally with the
debt securities. (Section 101)
"Subsidiary" of a Person means (1) any corporation more than 50% of the
outstanding securities having ordinary voting power of which is owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, or (2) any partnership or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned.
For the purposes of this definition, securities or ownership interests "having
ordinary voting power" means securities or other equity interests that
ordinarily have voting power for the election of directors, or persons having
management power with respect to the Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency. (Section 101)
Limitation on Sale/Leaseback Transactions. The Indenture provides that we
and our Subsidiaries will not enter into any Sale/Leaseback Transaction with
any Person (other than us and our Subsidiaries) unless either:
(1) We and our Subsidiaries would be entitled to incur Debt, in a principal
amount equal to the Attributable Debt with respect to such Sale/Leaseback
Transaction, secured by a Lien on the property subject to such
Sale/Leaseback Transaction pursuant to the covenant described under
"-Limitation on Liens" above without equally and ratably securing the
debt securities pursuant to such covenant;
(2) After the date of the original issuance of the Offered Debt Securities
and within a period commencing six months prior to the effective date of
such Sale/Leaseback Transaction and ending six months thereafter, we or
our Subsidiaries have expended or will expend for any property (including
amounts expended for the acquisition thereof, and for additions,
alterations, improvements and repairs thereto) an amount equal to all or
a portion of the net proceeds received from such transaction and elect to
designate such amount as a credit against the application of the
restrictions set forth hereunder and under "-Limitation on Liens" to such
transaction (with any such amount not being so designated to be applied
as set forth in (3) below); or
(3) We, during or immediately after the expiration of the six months after
the effective date of any such Sale/Leaseback Transaction, apply to the
voluntary defeasance or retirement of the debt securities of any series
or any of our other Senior Indebtedness an amount equal to the greater of
the net proceeds of the sale or transfer of the property leased in such
transaction or the Attributable Debt as determined by us in an officer's
certificate delivered to the Trustee at the time of entering into such
transaction (in either case adjusted to reflect the remaining term of the
lease and any amount utilized by us or our Subsidiaries as set forth in
(2) above), less an amount equal to the principal amount of the debt
securities of any series delivered within six months after the date of
such arrangement to the Trustee for retirement and cancellation,
excluding retirements of debt securities of any series or of any Senior
Indebtedness pursuant to mandatory sinking fund or mandatory prepayment
provisions or by payment at maturity. (Section 1006)
"Attributable Debt," when used in connection with a Sale/Leaseback
Transaction, means, at the time of determination, the then present value of the
total net amount of rent required to be paid under the lease in respect of such
Sale/Leaseback Transaction during the remaining term thereof (including any
period for which such lease has been extended) or until the earlier date on
which the lessee may terminate such lease upon payment of a penalty or a lump-
sum termination payment (in which case the total net rent shall include such
penalty or termination payment), computed by discounting from the respective
due dates to such dates such total net amount of rent at the actual interest
factor included in such rent or implicit in the terms of the applicable
Sale/Leaseback Transaction, as determined in good faith by us. For purposes of
the foregoing definition, rent shall not include amounts required to be paid by
the lessee, whether or not designated as rent or additional rent, on account of
or contingent upon the amount of sales or deliveries, maintenance and repair,
insurance, taxes, assessments, water rates and similar charges. (Section 101)
"Sale/Leaseback Transaction" means any arrangement with any Person providing
for the leasing by us or our Subsidiaries, for a period of more than three
years of any property or assets, which property or assets have been or are to
be sold or transferred by us or our Subsidiaries to such Person in
contemplation of such leasing. (Section 101)
Events of Default. Unless otherwise provided in a prospectus supplement with
respect to any series of debt securities, the following shall constitute Events
of Default under the Indenture with respect to the debt securities of such
series issued under such Indenture:
(1) Failure to pay principal of, or premium, if any, on, any debt security of
such series when due at final maturity;
(2) Failure to pay any interim principal payment or any interest on any debt
security of such series when due, and continuance of such default for a
period of 30 days;
(3) Failure to deposit any mandatory sinking fund payment or analogous
obligation, when due, in respect of the debt securities of such series,
and continuance of such default for a period of 30 days;
(4) Failure to observe or perform any other covenant in the Indenture (other
than a covenant included in the Indenture for the benefit of a series of
debt securities other than such series), continued for a period of 60
days after written notice of such failure as provided in the Indenture;
(5) Certain events of bankruptcy, insolvency or reorganization;
(6) Failure to pay at final maturity, or upon the declaration of acceleration
of payment of, our or our Subsidiaries' Debt for borrowed money (other
than a failure to pay being contested in good faith by us or our
Subsidiaries with respect to Debt consisting of an obligation to pay all
or part of the acquisition consideration of an acquired business or
asset) of $10 million or more (whether the Debt now exists or is
hereafter created) as a result of the occurrence of one or more events of
default as defined in any mortgages, indentures or instruments under
which such Debt may have been issued or by which such Debt may have been
secured, and the failure to pay is not cured or the acceleration is not
rescinded, annulled or cured, in any case prior to the expiration of 30
days after the date the failure to pay or acceleration occurred; and
(7) Any other Event of Default as may be specified with respect to debt
securities of such series. (Section 501)
If an Event of Default (except for an Event of Default described in clause
(5) above) with respect to any outstanding series of debt securities occurs and
is continuing, either the Trustee or the Holders of at least 25% in principal
amount of the outstanding debt securities of such series may declare the unpaid
principal amount (or, if the debt securities of that series are discounted debt
securities, such portion of the principal amount as may be specified in the
terms of that series) of all the debt securities of the applicable series and
the interest, if any, accrued thereon to be due and payable immediately. If an
Event of Default with respect to debt securities of any series at any time
outstanding described in clause (5) above occurs and is continuing, then the
principal amount of all the debt securities of such series will be immediately
due and payable without any act on the part of the Trustee or any Holder. At
any time after a declaration or occurrence of acceleration has been made, but
before a judgment or decree based on acceleration has been obtained, the
Holders of a majority in principal amount of the outstanding debt securities of
such series may, under certain circumstances, rescind and annul such
acceleration and its consequences; provided that no such rescission or
annulment shall extend to or otherwise affect any subsequent default or impair
any right consequent thereon. (Section 502) Depending on the terms of our other
indebtedness outstanding from time to time, an Event of Default under the
Indenture may give rise to cross defaults on such other indebtedness.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default (defined herein) in respect of any series of debt
securities, give to the Holders of the debt securities of such series notice of
all uncured and unwaived defaults known to it; provided, however, that, except
in the case of a default in the payment of the principal of, or premium, if
any, or any interest on, or any sinking fund installment with respect to, any
debt securities of such series, the Trustee will be protected in withholding
such notice if it in good faith determines that the withholding of such notice
is in the interest of the Holders of the debt securities of such series; and
provided, further, that such notice shall not be given until at least 30 days
after the occurrence of a default in the performance, or breach, of any
covenant or warranty under such Indenture other than for the payment of the
principal of (or premium, if any) or any interest on, or any sinking fund
installment with respect to, any debt securities of such series. For the
purpose of this provision, "default" with respect to debt securities of any
series means any event that is, or after notice or lapse of time, or both,
would become, an Event of Default with respect to the debt securities of such
series. (Section 602)
The Holders of a majority in principal amount of the outstanding debt
securities of any series (or, in certain cases, all outstanding debt securities
under the Indenture) have the right, subject to certain limitations, to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the debt securities of such series (or of all
outstanding debt securities under the Indenture). (Section 511) The Indenture
provides that in case an Event of Default shall occur and be continuing, the
Trustee shall exercise such of its rights and powers under the Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs. (Section 601) Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders of the debt securities unless they
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction. (Section 603)
The Holders of a majority in principal amount of the outstanding debt
securities of any series (or, in certain cases, all debt securities outstanding
under the Indenture) may, on behalf of the Holders of all debt securities of
such series (or of all debt securities outstanding under the Indenture), waive
any past default under the Indenture, except a default in the payment of the
principal of, or premium, if any, or interest on any debt security or in
respect of a provision, which under the Indenture cannot be modified or amended
without the consent of the Holder of each outstanding debt security affected.
(Section 512) The Holders of a majority in principal amount of the outstanding
debt securities affected thereby may, on behalf of the Holders of all such debt
securities, waive compliance by us with certain restrictive provisions of the
Indenture. (Section 1008)
We are required to furnish to the Trustee annually a statement as to our
performance of certain of our obligations under the Indenture and as to any
default in such performance. (Section 1007)
Modification of the Indenture. Modifications of and amendments to the
Indenture may be made by us and the Trustee with the consent of the Holders of
a majority in principal amount of the outstanding debt securities under the
Indenture affected thereby; provided, however, that, without the consent of the
Holder of each outstanding debt security affected, no such modification or
amendment may:
(1) Change the Stated Maturity date of the principal of, or any installment
of principal of or interest on, any debt security;
(2) Reduce the principal amount of, or the premium, if any, or interest on,
any debt security;
(3) Change the place of payment where, or the coin, currency or currencies,
or currency unit or units of payment in which, any principal of, or
premium, if any, or interest on, any debt security is payable;
(4) Alter the method of computation of any amount payable on redemption,
repayment or purchase, if any;
(5) Impair the right to institute suit for the enforcement of any payment on
or with respect to any debt security; or
(6) Reduce the percentage in principal amount of outstanding debt securities
the consent of the Holders of which is required for modification or
amendment of the Indenture or for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults. (Section
902)
The Indenture provides that we and the Trustee may, without the consent of
any Holders of debt securities, enter into supplemental indentures in order to:
(1) Add to our covenants or add additional Events of Default for the
protection of the Holders of the debt securities;
(2) Establish the form or terms of debt securities of any series;
(3) Evidence the acceptance of appointment by a successor trustee;
(4) Secure debt securities of any series;
(5) Evidence the assumption by a successor Person of our obligations;
(6) Cure ambiguities or inconsistencies in the Indenture, provided that
action to cure ambiguities or inconsistencies shall not adversely affect
the interests of the Holders of the debt securities. (Section 901)
Limitations on Mergers, Consolidations and Sale of Assets. The Indenture
provides that we will not consolidate with or merge into any Person, or sell,
lease, convey, transfer or otherwise dispose of all or substantially all of our
assets to any Person, unless:
(1) The Person formed by or surviving such consolidation or merger (if other
than us), to which such sale, lease, conveyance, transfer or other
disposition shall be made (collectively, the "Successor"), is a
corporation, partnership or trust organized and existing under the laws
of the United States or any State thereof or the District of Columbia,
and the Successor assumes by supplemental indenture in a form
satisfactory to the Trustee all of our obligations under the Indenture
and the debt securities;
(2) Immediately after giving effect to such transaction and treating any
Debt that becomes an obligation of us or our Subsidiaries as a result
thereof as having been incurred by us or our Subsidiaries at the time of
such transaction, no Event of Default, and no event that, after notice or
lapse of time or both, would become an Event of Default, shall have
occurred and be continuing;
(3) If, as a result of such transaction, our property or assets or those of
our Subsidiaries would become subject to a Lien prohibited by the
provisions described under "-Limitation on Liens," we or our Successor
shall have secured the debt securities as required by that covenant; and
(4) We shall have delivered to the Trustee an Officer's Certificate and
Opinion of Counsel, each stating that such merger, consolidation, sale or
conveyance and such supplemental indenture, if any, complies with the
Indenture. (Section 801)
Upon any such consolidation, merger or asset transfer, the Successor shall be
substituted for us, and, thereafter (except in the case of a lease) we shall be
relieved of all obligations and covenants under the Indenture and the debt
securities. (Section 802)
Discharge and Defeasance. We may terminate our obligations under the
Indenture, other than our obligation to pay the principal of, and premium, if
any, and interest on the debt securities of any series and certain other
obligations, if we:
(1) Irrevocably deposit or cause to be irrevocably deposited with the
Trustee as trust funds (a) cash or (b) U.S. Government Obligations, or
(c) a combination of cash and U.S. Government Obligations, maturing as to
principal and interest in such amounts and at such times as will be
sufficient to pay the principal of, any premium on, any interest on, and
any mandatory sinking fund payments in respect of, all outstanding debt
securities of such series on the Stated Maturity of such payments or on
any Redemption Date;
(2) Deliver to the Trustee an Opinion of Counsel to the effect that the
Holders of debt securities of such series will not recognize income, gain
or loss for United States federal income tax purposes as a result of such
deposit, satisfaction and discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at the
same time as would have been the case if such deposit, satisfaction and
discharge had not occurred; and
(3) Comply with any additional conditions specified to be applicable with
respect to the covenant defeasance of debt securities of such series.
(Section 401)
The terms of any series of debt securities may also provide for legal
defeasance. In such case, if we:
(1) Irrevocably deposit, or cause to be irrevocably deposited, (a) cash or
(b) U.S. Government Obligations or (c) a combination thereof as described
above;
(2) Deliver to the Trustee the Opinion of Counsel as described above, except
that the opinion must state that it is based on a ruling by the Internal
Revenue Service or other change since the date of the Indenture under
applicable Federal income tax law;
(3) Make a request to the Trustee to be discharged from our obligations on
the debt securities of such series; and
(4) Comply with any additional conditions specified to be applicable with
respect to legal defeasance of debt securities of such series;
then we shall be deemed to have paid and discharged the entire indebtedness on
all the outstanding debt securities of such series, and our obligations under
the Indenture and the debt securities of such series to pay the principal of,
and premium, if any, and interest on the debt securities of such series shall
cease, terminate and be completely discharged, and the Holders thereof shall
thereafter be entitled only to payment out of the cash or U.S. Government
Obligations deposited with the Trustee as aforesaid, unless our obligations are
revived and reinstated because the Trustee is unable to apply such trust fund
by reason of any legal proceeding, order or judgment. (Sections 403 and 404)
Notwithstanding the foregoing, no discharge or defeasance described above
shall affect the following obligations to or rights of the Holders of any
series of debt securities:
(1) Rights of registration of transfer and exchange of debt securities of
such series;
(2) Rights of substitution of mutilated, defaced, destroyed, lost or stolen
debt securities of such series, if applicable;
(3) Rights of Holders of debt securities of such series to receive payments
of principal thereof and premium and interest, if any, thereon when due
and to receive mandatory sinking fund payments, if any, thereon when due
from the trust funds held by the Trustee;
(4) The rights, obligations, duties and immunities of the Trustee;
(5) The rights of holders of debt securities of such series as beneficiaries
with respect to property deposited with the Trustee payable to all or any
of them; and
(6) Our obligations to maintain an office or agency in respect of debt
securities of such series.
"U.S. Government Obligations" is defined in the Indenture as direct
noncallable obligations of, or noncallable obligations the payment of principal
of and interest on which is guaranteed by, the United States of America, or to
the payment of which obligations or guarantees the full faith and credit of the
United States of America is pledged, or beneficial interests in a trust the
corpus of which consists exclusively of money or such obligations or a
combination thereof. (Section 101)
Form, Exchange, Registration and Transfer. Debt securities are issuable in
definitive form as Registered Debt Securities, as Bearer Debt Securities or
both. (Section 301) Reference is made to the prospectus supplement for the
terms relating to the form, exchange, registration and transfer of Bearer Debt
Securities (which may be more or less restrictive than terms described herein
for Registered Debt Securities) and debt securities issuable in temporary or
permanent global forms.
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. (Section 305)
Registered Debt Securities may be presented for registration of transfer
(with the form of transfer endorsed thereon duly executed) at the office of the
Security Registrar or at the office of any transfer agent designated by us for
such purpose with respect to any series of debt securities and referred to in
the applicable prospectus supplement, without 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 Security Registrar in accordance
with the terms of the Indenture. We have appointed the Trustee as Security
Registrar. (Section 305) If a prospectus supplement refers to any transfer
agents (in addition to the Security Registrar) initially designated by us with
respect to any series of debt securities, we may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that if debt securities of a
series are issuable solely as Registered Debt Securities, we will be required
to maintain a transfer agent in each Place of Payment for such series. We may
at any time designate additional transfer agents with respect to any series of
debt securities. (Section 1002)
In the event of any redemption in part, we shall not be required to:
(1) Issue, register the transfer of, or exchange Registered Debt Securities
of any series during a period beginning at the opening of business 15
days prior to the mailing of a notice of redemption and ending on the
close of business on the day of mailing of the relevant notice of
redemption; or
(2) Register the transfer of or exchange any Registered Debt Security, or
portion thereof, called for redemption, except the unredeemed portion of
any Registered Debt Security being redeemed in part. (Section 305)
Payment and Paying Agents. Unless otherwise indicated in an applicable
prospectus supplement, payment of principal of and any premium and interest on
Registered Debt Securities will be made in the designated currency or currency
unit at the office of such Paying Agent or Paying Agents as we may designate
from time to time, except that, at our option, payment of any interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register. Unless otherwise indicated in an
applicable prospectus supplement, payment of any installment of interest on
Registered Debt Securities will be made to the Person in whose name such
Registered Debt Security is registered at the close of business on the Regular
Record Date for such interest. (Section 307)
Unless otherwise indicated in an applicable prospectus supplement, the
Corporate Trust Office of the Trustee in New York, New York, will be designated
by us as a Paying Agent for payments with respect to debt securities which are
issuable solely as Registered Debt Securities. We 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
we will be required to maintain a Paying Agent in each Place of Payment for
such series. (Section 1002)
All moneys paid by us to a Paying Agent for the payment of principal of and
any premium or interest on any debt security that 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 us, and the
Holder of such debt security or any coupon will thereafter look only to us for
payment thereof. (Section 1003)
Global Securities. The Offered Debt Securities of a series may be issued in
whole or in part in the form of one or more global securities ("Global
Securities") that will be issued to and registered in the name of the
depositary (the "Depositary") identified in the prospectus supplement, or its
nominee, relating to such series. Global Securities may be issued in either
registered or bearer form and in either temporary or permanent form. Unless and
until a Global Security is exchanged in whole or in part for the individual
debt securities represented thereby, such Global Security may not be
transferred except as a whole by the Depositary to its nominee, or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary, or
by such Depositary or any such nominee to a successor Depositary or nominee of
such successor Depositary. (Section 204)
The specific terms of the depositary arrangement with respect to a series of
Offered Debt Securities will be described in the prospectus supplement relating
to such series. We anticipate that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary or its nominee will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the individual debt securities represented by such Global
Security to the accounts of persons that have accounts with the Depositary.
Such accounts shall be designated by the dealers, underwriters or agents with
respect to such debt securities or by us if such debt securities are offered
and sold directly by us. Ownership of beneficial interests in a Global
Security will be limited to persons that have accounts with the Depositary
("Participants") or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records
maintained by the Depositary or its nominee (with respect to interests of
Participants) and the records of Participants (with respect to interests of
persons other than Participants). The laws of some states require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary or its nominee is the registered owner of a Global
Security, such registered owner will be considered the sole owner or holder of
the debt securities represented by such Global Security for all purposes under
the Indenture. Except as provided below, owners of beneficial interests in a
Global Security will not be entitled to have any of the individual debt
securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any such debt
securities in definitive form and will not be considered the owners or holders
thereof under the Indenture.
Payments of principal of and premium, if any, and interest, if any, on debt
securities represented by a Global Security registered in the name of the
Depositary or its nominee will be made to the Depositary or its nominee, as the
case may be, as the registered owner of the Global Security representing such
debt securities. None of us, the Trustee, any Paying Agent or the Security
Registrar for such debt securities will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of the Global Security for such debt securities
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
We expect that the Depositary or its nominee, immediately upon receipt of
any payment of principal, premium or interest in respect of a Global Security,
will credit the Participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of such Global
Security as shown on the records of the Depositary or its nominee. We also
expect that payments by Participants to owners of beneficial interests in such
Global Security held through such Participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name."
Such payments will be the sole responsibility of such Participants.
We have no control over the practices of the Depositary or the Participants,
and there can be no assurance that these practices will not be changed. If the
Depositary for a series of debt securities is at any time unwilling, unable or
ineligible to continue as depositary and a successor depositary is not
appointed by us by the effective date of the resignation of the Depositary, we
will issue individual debt securities of such series in exchange for the Global
Security representing such series of debt securities. In addition, we may at
any time and in our sole discretion, subject to any limitations described in
the prospectus supplement relating to such debt securities, determine not to
have any debt securities of a series represented by one or more Global
Securities and, in such event, will issue individual debt securities of such
series in exchange for the Global Security representing such series of debt
securities. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery of individual debt securities of
the series represented by such Global Security equal in principal amount to
such beneficial interest and to have such debt securities registered in its
name. Individual debt securities of such series so issued will be issued in
denominations, unless otherwise specified by us, of $1,000 and integral
multiples thereof.
Meetings. The Indenture contains provisions for convening meetings of the
Holders of debt securities of a series. (Section 1301) A meeting may be called
at any time by the Trustee, and also, upon request, by us or the Holders of at
least 10% in principal amount of the Outstanding Debt Securities of such
series, in any such case upon notice given as described under "-Notices" below.
(Section 1302) Except for any consent that must be given by the Holder of each
Outstanding Debt Security affected thereby, as described under "-Modification
of the Indenture" above, any resolution presented at a meeting or adjourned
meeting at which a quorum is present may be adopted by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series; provided, however, that except for any consent that
must be given by the Holder of each Outstanding Debt Security affected thereby,
as described under "-Modification of the Indenture" above, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the Holders of a
specified percentage, which is less than a majority in principal amount of the
Outstanding Debt Securities of a series, may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Debt Securities of that series. Subject to the
proviso set forth above, any resolution passed or decision taken at any meeting
of Holders of debt securities of any series duly held in accordance with the
Indenture will be binding on all Holders of debt securities of that series and
any related coupons. The quorum at any meeting called to adopt a resolution,
and at any reconvened meeting, will be Persons holding or representing a
majority in principal amount of the Outstanding Debt Securities of a series.
(Section 1304)
Notices. 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.
(Section 107)
The Trustee. The Indenture contains certain limitations on the right of the
Trustee, as our creditor, to obtain payment of claims in certain cases and to
realize on certain property received with respect to any such claims, as
security or otherwise. (Section 613) The Trustee is permitted to engage in
other transactions, except that if it acquires any conflicting interest (as
defined), it must eliminate such conflict or resign. (Section 608)
The Trustee may make loans to us and our Subsidiaries and affiliates from
time to time in the ordinary course of business and at prevailing interest
rates. In addition, the Trustee may from time to time serve as a depositary of
funds of, and perform other services for, us and our Subsidiaries and
affiliates.
PLAN OF DISTRIBUTION
We and the selling shareholders may sell securities directly to one or more
purchasers or to or through underwriters, dealers or agents. The prospectus
supplement relating to such securities will set forth the terms of the
offering, including the name or names of any underwriters, the purchase price
and proceeds to us from such sale, any underwriting discounts and other items
constituting underwriters' compensation, the initial public offering price and
any discounts or concessions allowed, reallowed or paid to dealers, and any
securities exchanges on which the securities may be listed.
Securities may be distributed 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 prevailing market prices or at
negotiated prices. The applicable prospectus supplement will describe the
method of distribution.
If underwriters are used in the sale, the underwriters will acquire the
securities for their own account and may resell them from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Securities
may be offered to the public through underwriting syndicates represented by one
or more managing underwriters or directly by one or more underwriters without a
syndicate. If an underwriting syndicate is used, the managing underwriter or
underwriters will be named on the cover of the prospectus supplement. Unless
otherwise set forth in the prospectus supplement, the obligations of the
underwriters to purchase securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all securities
offered if any are purchased. Any initial public offering price and any
discounts or concessions allowed, reallowed or paid to dealers may be changed
from time to time.
If a dealer is used in an offering of securities, we or the selling
shareholders will sell such securities to the dealer, as principal. The dealer
may then resell such securities to the public at varying prices to be
determined by the dealer at the time of sale. The terms of the transaction will
be set forth in the applicable prospectus supplement.
Commissions payable by us or the selling shareholders to any agent involved
in the offer or sale of securities (or the method by which such commissions may
be determined) will be set forth in the applicable prospectus supplement.
Unless otherwise indicated in the prospectus supplement, any such agent will be
acting on a best efforts basis.
If so indicated in the prospectus supplement, we or the selling shareholders
will authorize underwriters, dealers or agents to solicit offers by certain
specified institutions to purchase securities from us or the selling
shareholders at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will be subject only
to those conditions set forth in the prospectus supplement, and the prospectus
supplement will set forth the commission payable by us or the selling
shareholders for solicitation of such contracts.
Dealers and agents named in a prospectus supplement may be deemed to be
underwriters of the securities within the meaning of the Securities Act.
Underwriters, dealers and agents may be entitled under agreements entered into
with us to indemnification by us or the selling shareholders against certain
civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments that the underwriters, dealers or agents
may be required to make in respect thereof. Underwriters, dealers and agents
may be customers of, engage in transactions with, or perform services for us or
the selling shareholders in the ordinary course of business.
Except for our class A common stock, which is currently traded on the Nasdaq
National Market, each series of securities will be a new issue of securities
with no established trading market. Any underwriters to whom securities are
sold may make a market in such securities, but will not be obligated to do so
and may discontinue their market making activities at any time. Accordingly,
there can be no assurance that a secondary market will be created for any of
the securities or that any market created will continue.
LEGAL MATTERS
The validity of the securities will be passed upon for us by Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, Louisiana.
EXPERTS
Our consolidated balance sheets as of October 31, 1996 and 1997 and the
related consolidated statements of earnings, shareholders' equity and cash
flows for each of the three years in the period ended October 31, 1997, and the
financial statement schedule incorporated by reference in this registration
statement, have been audited by PricewaterhouseCoopers LLP, independent
accountants, as stated in their reports with respect thereto, which are
incorporated by reference herein in reliance upon the authority of such firm as
experts in accounting and auditing.
=================================================== ====================
Prospective investors may rely only on the $750,000,000
information contained in this prospectus. Neither
Stewart Enterprises, Inc. nor any underwriter
has authorized anyone to provide prospective
investors with different or additional information.
This prospectus is not an offer to sell nor is it
seeking an offer to buy these securities in any LOGO
jurisdiction where the offer or sale is not
permitted. The information contained in this
prospectus is correct only as of the date of this
prospectus, regardless of the time of the delivery
of this prospectus or any sale of these securities. STEWART
ENTERPRISES, INC.
CLASS A COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
TABLE OF CONTENTS
PAGE
Where You Can Find More Information... 2 ==============
The Company........................... 3 PROSPECTUS
Use of Proceeds....................... 3 ==============
Selling Shareholders.................. 3
Ratio of Earnings to Fixed Charges.... 4
Description of Class A Common Stock... 5
Description of Preferred Stock........ 5
Description of Debt Securities........ 6
Plan of Distribution.................. 17
Legal Matters......................... 18
Experts............................... 18 , 199
================================================== ====================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The estimated fees and expenses payable by us in connection with the
issuance and distribution of the securities registered hereunder are as
follows:
Registration Fee $ 69,500
Printing Costs 120,000
Legal Fees and Expenses 150,000
Accounting Fees and Expenses 100,000
Rating Agents' Fees 200,000
Blue Sky Fees and Expenses 20,000
Trustee's and Registrar's Fees 13,000
Miscellaneous 77,500
---------
Total $ 750,000
=========
ITEM 15. Indemnification of Directors and Officers.
Section 83 of the Louisiana Business Corporation Law gives Louisiana
corporations broad powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses incurred in the
defense of any lawsuit to which they are made parties by reason of being or
having been such directors or officers; gives a director or officer who
successfully defends an action the right to be so indemnified, subject to
specific conditions and exclusions; and authorizes Louisiana corporations to
buy directors' and officers' liability insurance. Such indemnification is not
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, authorization of shareholders or otherwise.
Our By-laws make mandatory the indemnification of directors and officers
permitted by the Louisiana Business Corporation Law. The standard to be
applied in evaluating any claim for indemnification (excluding claims for
expenses incurred in connection with the successful defense of any proceeding
or matter therein for which indemnification is mandatory without reference to
any such standard) is whether the claimant acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
corporation. With respect to any criminal action or proceeding, the standard
is that the claimant had no reasonable cause to believe the conduct was
unlawful. No indemnification is permitted in respect of any claim, issue or
matter as to which a director or officer shall have been adjudged by a court of
competent jurisdiction to be liable for willful or intentional misconduct or to
have obtained an improper personal benefit, unless, and only to the extent that
the court shall determine upon application that, in view of all the
circumstances of the case, he is fairly and reasonably entitled to indemnity
for such expenses which the court shall deem proper.
We have in effect a directors' and officers' liability insurance policy that
provides for indemnification of our officers and directors against losses
arising from claims asserted against them in their capacities as officers and
directors, subject to limitations and conditions set forth in such policy.
We have entered into indemnity agreements with each of our directors and
executive officers, pursuant to which we have agreed under certain
circumstances to purchase and maintain directors' and officers' liability
insurance, unless such insurance is not reasonably available or, in the
reasonable judgment of the Board of Directors, there is insufficient benefit to
us from such insurance. The agreements also provide that we will indemnify
each director and executive officer against any costs and expenses, judgments,
settlements and fines incurred in connection with any claim involving him by
reason of his position as director or officer that are in excess of the
coverage provided by any such insurance, provided that he meets certain
standards of conduct.
The Underwriters have also agreed to indemnify the directors and certain of
the officers against certain liabilities under the Securities Act of 1933,
as amended, or to contribute to payments that such directors and officers may
be required to make in respect thereof.
ITEM 16. Exhibits.
1.1 Form of Equity Underwriting Agreement*
1.2 Form of Debt Underwriting Agreement*
4.1 Our Amended and Restated Articles of Incorporation, as amended
(incorporated by reference to Exhibit 3.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended January 31, 1996)
4.2 Our By-laws, as amended (incorporated by reference to Exhibit 3.2 to
our Annual Report on Form 10-K for the fiscal year ended October 31,
1997)
4.3 Specimen of class A common stock certificate (incorporated by
reference to Exhibit 4.2 to Amendment No. 3 to our Registration
Statement on Form S-1 (Registration No. 33-42336) filed with the
Commission on October 7, 1991)
4.4 Indenture dated as of December 1, 1996 between us and Citibank, N.A.,
as trustee (incorporated by reference to Exhibit 4 to our Registration
Statement on Form S-3 (Registration No. 333-14467) filed with the
Commission on October 18, 1996), as supplemented by the First
Supplemental Indenture dated as of April 24, 1998 between us and
Citibank, N.A., as trustee (incorporated by reference to Exhibit 4.1
to our Current Report on Form 8-K filed with the Commission on
April 24, 1998)
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P.+
12 Computation of ratio of earnings to fixed charges+
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P. (included in Exhibit 5)+
24 Power of Attorney (included in the signature pages to this
Registration Statement)+
25 Statement of Eligibility of Trustee on Form T-1+
____________
*To be filed by amendment.
+Previously filed.
ITEM 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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
this registration statement; notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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.
(c) 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
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.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it had reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New Orleans, State of Louisiana, on
December 30, 1998.
STEWART ENTERPRISES, INC.
By: *
_____________________
Joseph P. Henican, III
Chief Executive Officer and
Vice Chairman of the Board
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
* Chairman of the Board
______________________
Frank B. Stewart, Jr.
* Chief Executive Officer and
______________________
Joseph P. Henican, III Vice Chairman of the Board
(Principal Executive Officer)
* President, Chief Operating
______________________
William E. Rowe Officer and Director
/s/ KENNETH C. BUDDE Executive Vice President, December 30, 1998
______________________
Kenneth C. Budde Chief Financial Officer
and Director
* Director
______________________
Darwin C. Fenner
* Director
______________________
John P. Laborde
* Director
______________________
James W. McFarland
* Director
______________________
Michael O. Read
* Director
______________________
Dwight A. Holder
*By: /S/ KENNETH C. BUDDE December 30, 1998
_____________________
Kenneth C. Budde
Attorney-in-Fact
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Stewart Enterprises, Inc. on Form S-3 of our reports, which include an
explanatory paragraph related to changes in the Company's method of
accounting for cemetery sales and its method of accounting for funeral
services investment trust fund earnings, dated December 16, 1997 on our
audits of the consolidated financial statements and financial statement
schedule of Stewart Enterprises, Inc. and Subsidiaries, as of October 31,
1997 and 1996 and for each of the three years in the period ended October
31, 1997. We also consent to the reference to our firm under the caption
"Experts".
/s/ PricewaterhouseCoopers LLC
December 30, 1998
