SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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United Waste Systems, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or
Organization)
13-3532338
(I.R.S. Employer Identification No.)
Four Greenwich Office Park
Greenwich, Connecticut 06830
(203) 622-3131
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
SANDRA E. WELWOOD
United Waste Systems, Inc.
Greenwich, Connecticut 06830
(203) 622-3131
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
A copy of all communications, including communications sent to
the agent for service, should be sent to:
Joseph Ehrenreich, Esq.
Ehrenreich & Krause
1140 Avenue of the Americas
New York, N.Y. 10036
(212) 302-8050
Approximate date of commencement of proposed sale to public:
From time to time after this Registration Statement becomes
effective.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box. [X]
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
TITLE OF EACH CLASS AMOUNT PROPOSED PROPOSED AMOUNT
OF SECURITIES TO BE TO MAXIMUM MAXIMUM OF
REGISTERED BE OFFERING AGGREGATE REGISTRATION
REGISTERED PRICE OFFERING FEE
PER PRICE
SECURITY(1)
(2)
- -------------------------------------------------------------------------
4 1/2% Convertible $137,800,000 100% $137,800,000 $44,485(3)
Subordinated Notes
due June 1, 2001
Common Stock, par (4) -- -- --(5)
value $.001 per
share
- -------------------------------------------------------------------------
(1) Estimated solely for purposes of calculating the
registration fee in accordance with Rule 457 of the Securities
Act of 1933, as amended.
(2) Exclusive of accrued interest, if any.
(3) Of this fee, (i) $22,492 was paid in connection with the
original filing of this registration statement and (ii) $21,993
is being paid in connection with the filing of this Amendment No.
1.
(4) Such indeterminate number of shares of common stock as may
be issuable upon conversion of the Convertible Subordinated Notes
due June 1, 2001 registered hereunder, including such shares as
may be issuable pursuant to anti-dilution adjustments.
(5) No fee is payable pursuant to Rule 457(i)of the Securities
Act of 1933, as amended.
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.
PROSPECTUS
UNITED WASTE SYSTEMS, INC.
4 1/2% Convertible Subordinated Notes due June 1, 2001
Common Stock Acquired Upon Conversion of Such Notes
This Prospectus relates to the following securities that may
from time to time be sold by the Selling Security Holders (as
defined under "Selling Security Holders"): (i) up to $137,800,000
principal amount of 4 1/2% Convertible Subordinated Notes due
June 1, 2001(the "Notes") of United Waste Systems, Inc. (the
"Company") and (ii) all shares of Common Stock ("Common Stock")
of the Company that may be acquired by any Selling Security
Holder upon conversion of any Notes covered by this Prospectus.
This Prospectus does not cover the original issuance of shares of
Common Stock upon conversion of the Notes. The Company will not
receive any of the proceeds from the sales of Notes or Common
Stock by the Selling Security Holders.
The Notes covered by this Prospectus represent a portion of
$150,000,000 principal amount of Notes that were originally
issued by the Company to a group of underwriters on June 5, 1996,
pursuant to an exemption from the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act"),
provided by Section 4(2) thereof. The Notes were sold
simultaneously by such underwriters in transactions exempt from
the registration requirements of the Securities Act pursuant to
Rule 144A, Regulation D or Regulation S under the Securities Act.
The Notes and Common Stock that may be offered by the
Selling Security Holders pursuant to this Prospectus (the "Resale
Securities") may be sold from time to time by the Selling
Security Holders directly to purchasers or, alternatively, may be
offered from time to time through agents, brokers, dealers or
underwriters, who may receive compensation in the form of
concessions or commissions from the Selling Security Holders or
purchasers of the Resale Securities (which compensation may be in
excess of customary commissions). Any agents, brokers, dealers
or underwriters that participate in the distribution of the
Resale Securities may be deemed to be "underwriters" within the
meaning of the Securities Act, and any commissions received by
them and any profit on the resale of any Resale Securities
purchased by them might be deemed to be underwriting discounts or
commissions under the Securities Act. See "Selling Security
Holders" and "Plan of Distribution".
The Notes are convertible into shares of Common Stock of the
Company, at any time on or after September 3, 1996 and prior to
the close of business on the maturity date, unless previously
redeemed or repurchased, at a conversion price of $32.50 per
share (equivalent to a conversion rate of 30.76923 shares per
$1,000 principal amount of Notes), subject to adjustment in
certain events. Such conversion price and conversion rate, have
been adjusted for a two-for-one stock split (in the form of a
100% stock dividend) effected by the Company on June 18, 1996.
Interest on the Notes is payable on June 1 and December 1 of
each year, commencing on December 1, 1996, and the Notes mature
on June 1, 2001. The Notes are not entitled to any sinking fund.
The Notes are redeemable (a) in the event of certain
developments involving U.S. withholding taxes or certification
requirements (as described under "Description of Notes-Redemption-Redemption
for Taxation Reasons") at a redemption
price of 100% of the principal amount of the Notes to be
redeemed, plus accrued interest to the redemption date and (b) at
the option of the Company, on or after June 1, 1999, in whole or
in part, at the redemption prices set forth herein, plus accrued
interest to the redemption date (as described under "Description
of Notes-Redemption-Optional Redemption").
In the event of a Change in Control (as defined), each
holder of Notes may require the Company to repurchase its Notes,
in whole or in part, for cash or, at the Company's option, common
stock (valued at 95% of the average of the closing prices for the
five trading days immediately preceding and including the third
trading day prior to the repurchase date), at a repurchase price
of 100% of the principal amount of Notes to be repurchased, plus
accrued interest to the repurchase date. See "Description of
Notes-Repurchase at Option of Holders Upon a Change in Control".
The Notes are unsecured obligations subordinated in right of
payment to all existing and future Senior Indebtedness (as
defined) of the Company and are effectively subordinated in right
of payment to all indebtedness and other liabilities of the
Company's subsidiaries. As of September 30, 1996, the aggregate
amount of outstanding Senior Indebtedness of the Company was
approximately $116.1 million. As of September 30, 1996,
subsidiaries of the Company had outstanding approximately $25.7
million of indebtedness (other than indebtedness to the Company)
and $134.8 million of other liabilities (other than liabilities
to the Company). The Indenture under which the Notes were issued
(the "Indenture") does not restrict the Company or its
subsidiaries from incurring additional Senior Indebtedness or
other indebtedness. See "Description of Notes-Subordination".
Prospective investors should carefully consider the matters
discussed under the caption "Risk Factors" commencing on page 8.
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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 date of this Prospectus is November 22, 1996
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY SELLING SECURITY HOLDER. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES
TO WHICH IT RELATES OR AN OFFER OF ANY SECURITIES IN ANY
JURISDICTION TO ANY PERSON WHERE SUCH AN OFFER WOULD BE UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALES MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF.
The terms "the Company" and "United Waste Systems" as used
herein refer solely to United Waste Systems, Inc. and not its
subsidiaries (except under the caption "Risk Factors").
TABLE OF CONTENTS
Available Information
Incorporation of Certain Documents by Reference
Summary
Risk Factors
Use of Proceeds
Ratio of Earnings to Fixed Charges
Description of Notes
Description of Registration Rights Agreement
Description of Capital Stock
United States Taxation
Selling Security Holders
Plan of Distribution
Validity of Securities
Experts
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and in
accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other
information filed by the Company can be inspected and copied at
the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Regional Offices of the Commission at Seven World Trade Center,
Suite 1300, New York, New York 10048 and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
at prescribed rates.
The Company makes certain filings with the Commission
electronically. The Commission maintains a Web site
(http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding registrants that file
electronically with the Commission.
The Company has filed with the Commission a Registration
Statement on Form S-3 under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities
offered hereby. This Prospectus does not contain all the
information set forth in the Registration Statement and the
exhibits thereto, as permitted by the rules and regulations of
the Commission. For further information with respect to the
Company and the securities offered hereby reference is hereby
made to such Registration Statement and the exhibits filed
therewith or incorporated therein by reference. The Registration
Statement, including the exhibits filed therewith or incorporated
therein by reference, may be inspected without charge at the
public reference facilities maintained by the Commission and at
the Commission's regional offices at the addresses stated above.
Copies of these documents may be obtained from the Public
Reference Section of the Commission at its office in Washington,
D.C., set forth above at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are
incorporated into this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the year
ended December 31, 1995 (the "Annual Report"); the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1996 and Amendment No. 1 thereto on Form 10-Q/A; the
Company's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1996; and the Company's Quarterly Report on Form
10-Q for the quarterly period ended September 30, 1996 (all the
aforementioned Quarterly Reports on Form 10-Q being referred to
collectively as the "1996 10-Qs").
2. The Company's Report on Form 8-K dated September 19,
1995 (filed on October 4, 1995)and Amendment No. 1 thereto (filed
in December 1995).
3. The Company's Report on Form 8-K dated May 31, 1996.
4. The Company's Report on Form 8-K dated June 18, 1996.
5. The Company's Report on Form 8-K dated June 28, 1996
(filed on August 23, 1996).
6. The Company's Report on Form 8-K dated September 27,
1996 (filed on November 8, 1996).
7. The Company's Reports on Form 10-C dated March 8, 1996,
and June 18, 1996, respectively.
8. The Company's definitive proxy statement dated April 22,
1996, relating to its 1996 Annual Meeting of Stockholders.
9. The description of the Company's Common Stock which is
contained in its Registration Statement on Form 8-A dated
November 16, 1992, filed under the Exchange Act.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 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 to be incorporated by
reference herein and to be a part hereof from the date of the
filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will furnish without charge to each person
(including any beneficial owner) to whom a Prospectus is
delivered, upon written or oral request of such person, a copy of
any of the documents incorporated herein by reference (other than
exhibits to such documents, unless such exhibits are specifically
incorporated by reference into the documents that this Prospectus
incorporates). Requests for such copies should be directed to
United Waste Systems, Inc., Attention: Corporate Secretary, Four
Greenwich Office Park, Greenwich, Connecticut 06830, telephone:
(203) 622-3131.
SUMMARY
The following summary is qualified in its entirety by the
more detailed information appearing elsewhere in this Prospectus.
SECURITIES TO WHICH THIS PROSPECTUS RELATES
This Prospectus relates to the following securities that may
from time to time be sold by the Selling Security Holders (i) up
to $137,800,000 principal amount of 4 1/2% Convertible
Subordinated Notes due June 1, 2001 (the "Notes") of the
Company(but not including any Notes that are in bearer form or
that were converted from bearer to registered form after August
29, 1996) and (ii) all shares of Common Stock that may be
acquired by any Selling Security Holder upon conversion of any
Note to which this Prospectus relates as described in the
preceding clause.
CERTAIN INFORMATION RELATING TO THE NOTES
Amount Outstanding
As of November 13, 1996, there was outstanding an aggregate
of $150,000,000 principal amount of Notes.
Form and Denomination
A portion of the outstanding Notes are in the form of
registered Notes without coupons ("Registered Notes")and a
portion are in the form of bearer notes with coupons
attached("Bearer Notes"). The Registered Notes may be issued in
denominations of $1,000 and integral multiples of $1,000 in
excess thereof. Bearer Notes may be issued only in denominations
of $5,000. This Prospectus does not cover any Bearer Notes (or
any Registered Notes that were issued after August 29, 1996, in
exchange for Bearer Notes).
Conversion
The Notes are convertible into shares of Common Stock of the
Company at any time on or after September 3, 1996 and prior to
the close of business on the maturity date, unless previously
redeemed or repurchased, at a conversion price of $32.50 per
share (equivalent to a conversion rate of 30.76923 shares per
$1,000 principal amount of Notes), subject to adjustment in
certain events. Such conversion price and conversion rate, have
been adjusted for a two-for-one stock split (in the form of a
100% stock dividend) effected by the Company on June 18, 1996.
Holders of Notes called for redemption will be entitled to
convert the Notes to and including, but not after, the close of
business on the fifth trading day next preceding the date fixed
for redemption. The right to convert a Note delivered for
repurchase will terminate on the close of business on the second
trading day preceding the repurchase date.
Optional Redemption
The Notes are redeemable (a) as described below under
"Additional Amounts and Redemption for Taxation Reasons" and (b)
at the option of the Company, on or after June 1, 1999, at the
redemption prices set forth herein, plus accrued interest to the
redemption date.
Additional Amounts and Redemption for Taxation Reasons
The Company will pay Additional Amounts (as defined under
"Description of Notes-Payment of Additional Amounts"), subject to
certain exceptions, in order that the non-U.S. Holders of
Registered Notes receive the full amount of the principal,
premium, if any, and interest specified therein (including any
amount payable upon a repurchase of the Notes as described below
under "Repurchase at Option of Holders Upon Change in Control")
without deduction for or on account of U.S. withholding taxes.
In the event that the Company must pay such Additional Amounts,
the affected Notes will be redeemable at the option of the
Company, as a whole but not in part, at 100% of the principal
amount thereof, plus any accrued interest to the redemption date
(but without reduction for U.S. withholding taxes). If U.S.
information reporting requirements are changed so as to require
disclosure of the nationality, residence or identity of the
beneficial owners of Bearer Notes or coupons, the Company is
required to either (a) redeem the Bearer Notes, as a whole but
not in part, at 100% of the principal amount thereof, plus
accrued interest to the redemption date; or (b) if such
disclosure may be avoided by payment of a backup withholding tax
or similar charge, withhold and pay (subject to certain limited
exceptions) any additional amounts necessary to cause the holders
of the Bearer Notes or coupons to receive the full amount of the
principal, premium, if any, and interest specified therein when
due. If the Company elects to pay additional amounts as provided
in clause (b) of the preceding sentence, so long as such
additional amounts continue to be payable, the Company may redeem
the Bearer Notes, as a whole but not in part, at 100% of the
principal amount thereof, plus accrued interest (including any
Additional Amounts) to the redemption date.
Repurchase at Option of Holders Upon Change in Control
Notes are repurchasable at the option of the holder thereof
upon a Change in Control (as defined under "Description of Notes-Repurchase at
Option of Holders Upon a Change in Control") at
100% of the principal amount thereof, plus accrued interest to
the repurchase date. The repurchase price is payable in cash or,
at the option of the Company, in common stock (valued at 95% of
the average closing prices of the common stock for the five
trading days ending on and including the third trading day prior
to the repurchase date).
Subordination
The Notes are subordinated to present and future Senior
Indebtedness (as defined under "Description of Notes-Subordination")
of United Waste Systems, Inc. The Notes are also
effectively subordinated in right of payment to all indebtedness
and other liabilities of the subsidiaries of United Waste
Systems, Inc. As of September 30, 1996, the aggregate amount of
outstanding Senior Indebtedness of United Waste Systems, Inc. ,
was approximately $116.1 million. As of September 30, 1996,
subsidiaries of United Waste Systems, Inc. had approximately
$25.7 million of indebtedness outstanding (other than
indebtedness to the Company) and $134.8 million of other
liabilities (other than liabilities to the Company). The
Indenture does not restrict the incurrence of additional Senior
Indebtedness or other indebtedness by United Waste Systems, Inc.
or any of its subsidiaries.
Events of Default
Events of Default include: (a) failure to pay principal of
or premium, if any, on any Note when due, whether or not such
payment is prohibited by the subordination provisions of the
Indenture; (b) failure to pay any interest on any Note or coupon
when due, continuing for 30 days, whether or not such payment is
prohibited by the subordination provisions of the Indenture; (c)
failure to perform, or the breach of, any other covenant of the
Company in the Indenture, continuing for 60 days after written
notice as provided in the Indenture; (d) default by the Company
in respect of any indebtedness for money borrowed in excess of
$10,000,000, which default constitutes a failure to pay such
indebtedness at maturity or results in acceleration of such
indebtedness, if such indebtedness is not discharged, or such
acceleration is not rescinded or annulled, within 30 days after
written notice as provided in the Indenture; and (e) certain
events of bankruptcy, insolvency or reorganization.
Registration Rights
The Company has filed the Registration Statement of which
this Prospectus forms a part pursuant to a Registration Rights
Agreement (as defined under "Description of Registration Rights
Agreement"). Upon certain failures by the Company to comply with
certain of its obligations under the Registration Rights
Agreement, additional interest will be payable on the Registered
Notes.
Indenture
The Notes have been issued pursuant to an Indenture dated as
of June 5, 1996, between the Company and Bankers Trust Company,
as trustee. The Indenture and the Notes are governed by the laws
of the State of New York, United States of America.
LISTING
Notes
The Notes issued in transactions complying with Rule 144A
have been designated for trading on the PORTAL System of the
National Association of Securities Dealers, Inc. (the "PORTAL
System"). However, Notes sold by Selling Security Holders
pursuant to the registration statement of which this Prospectus
forms a part are not expected to remain eligible for trading on
the PORTAL System. The Company has not applied, and does not
intend to apply, for listing of the Notes on any securities
exchange or for inclusion of the Notes on any automated quotation
system.
Common Stock
The Common Stock is quoted on the Nasdaq National Market
under the symbol "UWST".
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of
the Resale Securities by the Selling Security Holders.
RISK FACTORS
In addition to the other information in this Prospectus, the
following risk factors should be considered carefully in
evaluating the Company and its business before purchasing the
securities offered hereby.
Risks Associated with Acquisitions
Although the Company performs an investigation of each
business that it acquires, there may nevertheless be liabilities
that the Company fails or is unable to discover, including
liabilities arising from environmental contamination, non-compliance by prior
owners with environmental laws or regulatory
requirements or poor management practices by prior owners, and
for which the Company, as a successor owner, may be responsible.
The Company seeks to minimize the impact of these liabilities by
obtaining indemnities and warranties from the seller which may be
supported by deferring payment of a portion of the purchase
price. However, these indemnities and warranties, if obtained,
may not fully cover the liabilities due to their limited scope,
amount, or duration, the financial limitations of the indemnitor
or warrantor, or other reasons.
As the Company completes acquisitions in a region, it seeks
to achieve synergies and efficiencies through the integration of
newly acquired and existing operations in the region. There can
be no assurance, however, that the Company will be successful in
this regard or that such efforts may not in certain circumstances
adversely affect its existing operations.
Extensive Environmental and Land Use Laws and Regulations
The Company is subject to extensive and evolving
environmental and land use laws and regulations, which have
become increasingly stringent as a result of greater public
interest in protecting the environment. These laws and
regulations affect the Company's business in many ways, including
as set forth below. See Item 1 "Business Environmental
Regulations" included in the Annual Report incorporated by
reference herein for further information concerning the matters
set forth below.
Extensive Permitting Requirements. In order to develop and
operate a landfill or other solid waste management facility, it
is necessary for the Company to obtain and maintain in effect
various facility permits and other governmental approvals,
including those related to zoning, environmental and land use.
The Company may also be required to obtain other or similar
permits and approvals to expand its existing landfill operations
and other solid waste management operations. These permits and
approvals are difficult, time consuming and costly to obtain and
may be subject to community opposition, opposition by various
local elected officials or citizens, regulatory delays and other
uncertainties. In addition, after an operating permit for a
landfill or other facility is obtained, the permit may be subject
to modification, renewal or revocation by the issuing agency,
which may reopen opportunities for opposition relating to the
permit. Moreover, from time to time, regulatory agencies may
impose moratoria on, or otherwise delay, the review or grant of
these permits or approvals or they may modify the procedures or
increase the stringency of the standards applicable to such
review or the grant of such permits or approvals. There can be
no assurance that the Company will be successful in obtaining and
maintaining in effect the permits and approvals required for the
successful operation and growth of its business, including
permits and approvals required for the development of additional
disposal capacity needed to replace existing capacity that is
exhausted. The failure by the Company to obtain or maintain in
effect a permit significant to its business could adversely
affect the Company's business and financial condition.
See "-Capitalized Expenditures".
Design, Operation and Closure Requirements. The design,
operation and closure of landfills are subject to extensive
regulations. These regulations include, among others, the
regulations (the "Subtitle D Regulations") establishing minimum
federal requirements adopted by the United States Environmental
Protection Agency (the "EPA") in October 1991 under Subtitle D of
the Resource Conservation and Recovery Act of 1976 ("RCRA"),
which regulations generally became effective on October 9, 1993
(except for certain municipal solid waste landfills accepting
less than 100 tons per day, as to which the effective date was
April 9, 1994, and new financial assurance requirements, which
are scheduled to become effective April 9, 1997). The Subtitle D
Regulations require all states to adopt regulations regarding
landfill design, operation and closure requirements that are as
stringent as, or more stringent than, the Subtitle D Regulations.
All states in which the Company operates landfills have in place
extensive landfill regulations which have been updated or
replaced with new regulations at least as stringent as the
Subtitle D requirements. These federal and state regulations
include, among other things, requirements that the Company
monitor groundwater, control leachate and air emissions, post
financial assurances, and fulfill landfill closure and post-closure
obligations. These regulations could also require the
Company to undertake investigatory or remedial activities, to
curtail operations or to close a landfill temporarily or
permanently. Furthermore, future changes in these regulations
may require the Company to modify, supplement, or replace
equipment or facilities at costs which could be substantial.
Legal and Administrative Proceedings. In the ordinary
course of its business, the Company may become involved in a
variety of legal and administrative proceedings relating to land
use and environmental laws and regulations. These may include
proceedings by federal, state or local agencies seeking to impose
civil or criminal penalties on the Company for violations of such
laws and regulations, or to impose liability on the Company under
RCRA, Superfund (as discussed below) or comparable state
statutes, or to revoke, or deny renewal of, a permit; actions
brought by citizens' groups, adjacent landowners or governmental
entities opposing the issuance of a permit or approval to the
Company or alleging violations of the permits pursuant to which
the Company operates or laws or regulations to which the Company
is subject; and actions seeking to impose liability on the
Company for any environmental damage at its owned or operated
facilities (or at facilities formerly owned by the Company or its
predecessors) or damage that those facilities or other properties
may have caused to adjacent landowners or others, including
groundwater or soil contamination. These may arise out of the
presence of hazardous substances in landfills, methane or odor
emissions or other conditions. The Company could incur
substantial legal expenses during the course of the
aforementioned proceedings, and the adverse outcome of one or
more of these proceedings could adversely affect the Company's
business and financial condition.
During the ordinary course of its operations, the Company
has from time to time received, and expects that it may in the
future from time to time receive, citations or notices from
governmental authorities that its operations are not in
compliance with its permits or certain applicable environmental
or land use laws and regulations. The Company generally seeks to
work with the authorities to resolve the issues raised by such
citations or notices. There can be no assurance, however, that
the Company will always be successful in this regard, and the
failure to resolve a significant issue could result in one or
more of the adverse consequences to the Company described below
under "-Potential Liabilities".
Potential Liabilities. There may be various adverse
consequences to the Company in the event that a facility owned or
operated by the Company (or by a predecessor owner or operator
whose liabilities the Company may have acquired expressly or
under successor or other liability theories) causes environmental
damage, in the event that waste transported by the Company (or a
predecessor) causes or threatens to cause environmental damage at
another site, or in the event that the Company (or a predecessor)
fails to comply with applicable environmental and land use laws
and regulations or the terms of a permit or outstanding
administrative or consent order. These may include the
imposition of substantial monetary penalties on the Company; the
issuance of orders requiring the curtailment or termination of
the operations involved or affected; the revocation, denial or
deferral of review of permits or other approvals necessary for
continued operation or landfill expansion; the imposition of
liability on the Company in respect of any environmental damage
(including groundwater or soil contamination) at its facilities
or that its landfills or other Company owned or operated
facilities caused to adjacent landowners or others or to natural
resources or environmental damage at another site associated with
waste transported by the Company; the imposition of liability on
the Company under Superfund or under comparable state laws; and
criminal liability for the Company or its officers. Any of the
foregoing could adversely affect the Company's business and
financial condition.
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 ("Superfund") and analogous state laws
impose retroactive strict joint and several liability on various
parties that have owned, operated or sent waste to a site from
which there has been, or is threatened, a release of any
hazardous substance (as defined by Superfund) into the
environment. Liability under RCRA, Superfund and analogous state
laws may include responsibility for costs of site investigations,
site cleanup, natural resources damages and property damages.
Liabilities under RCRA, Superfund and analogous state laws can be
very substantial and, if imposed upon the Company, could
adversely affect the Company's business and financial condition.
In the ordinary course of its landfill and waste management
and disposal operations and in connection with its review of
landfills and other operations to be acquired, the Company has
discovered, and may in the future discover, indications of
groundwater contamination at certain landfills. In such events,
the Company has sought or been required to determine the
magnitude and source of the problem and, if appropriate or
required by applicable regulations, to design and implement
measures to monitor, remedy, and/or halt the spread of, the
contamination. There can be no assurance, however, that
contamination discovered at a landfill or other solid waste
management facilities will not result in one or more of the
adverse consequences to the Company described above.
Type, Quantity and Source Limitations. Certain permits and
approvals may limit the types of waste that may be accepted at a
landfill or the quantity of waste that may be accepted at a
landfill during a given time period. In addition, certain
permits and approvals, as well as certain state and local
regulations, may seek to limit a landfill to accepting waste that
originates from specified geographic areas or seek to restrict
the importation of out-of-state waste or otherwise discriminate
against out-of-state waste. Generally, such restrictions on the
importation of out-of-state waste have not withstood judicial
challenge. However, from time to time, federal legislation is
proposed which would allow individual states to prohibit the
disposal of out-of-state waste or to limit the amount of out-of-state waste
that could be imported for disposal and would require
states, under certain circumstances, to reduce the amounts of
waste exported to other states. Although no such federal
legislation has to date been enacted, if such federal legislation
should be enacted in the future, states in which the Company
operates landfills could act to limit or prohibit the importation
of out-of-state waste. Such state actions could adversely affect
the Company's landfills within those states that receive a
significant portion of waste originating from other states.
In addition, certain states and localities may for economic
or other reasons restrict the exportation of waste from their
jurisdiction or require that a specified amount of waste be
disposed of at facilities within their jurisdiction. In 1994,
the United States Supreme Court held unconstitutional, and
therefore invalid, a local ordinance that sought to impose flow
controls on taking waste out of the locality. However, certain
state and local jurisdictions continue to seek to enforce such
restrictions and, in certain cases, the Company may elect not to
challenge such restrictions based upon various considerations.
In addition, the aforementioned federal legislation that has from
time to time been proposed could, if enacted, allow states and
localities to impose certain flow control restrictions. These
restrictions could result in the volume of waste going to
landfills being reduced in certain areas, which may adversely
affect the Company's ability to operate its landfills at their
full capacity and/or affect the prices that can be charged for
landfill disposal services. These restrictions may also result
in higher disposal costs for the Company's collection operations.
If the Company were unable to pass such higher costs through to
its customers, the Company's results of operations could be
adversely affected.
Limits on Insurance Coverage
The Company's insurance coverage for environmental liability
is limited to (i) contractors pollution liability insurance that
relates to certain of the environmental services provided by the
Company described in the Annual Report incorporated by reference
herein, under Item 1 "Business Operations Other Services", and
(ii) certain other pollution liability insurance, which insurance
is equivalent to self insurance because under the terms thereof
the Company is required to fully reimburse the insurance company
for any claims paid. The Company does not carry additional
insurance for any other types of environmental liability because
the Company believes that the cost for such insurance is high
relative to the coverage it would provide. Due to the limited
nature of the Company's insurance coverage for environmental
liability, if the Company were to incur liability for
environmental damage, its business and financial condition could
be adversely affected. With the exception of insurance coverage
for environmental liability, the Company carries a broad range of
insurance for the protection of its assets and operations.
However, the Company's blanket insurance policy, which covers
workers compensation, automobile and general liability, is
subject to a deductible of $250,000 per incident. See the Annual
Report incorporated by reference herein, under Item
1 "Business Liability Insurance and Bonding".
Ongoing Capital Requirements
The Company may require additional equity and/or debt
financing in order to provide the cash required for future
operations, capital expenditures, acquisitions, debt repayment
obligations and/or financial assurance obligations. There can be
no assurance, however, that such financing will be available or,
if available, will be available on terms satisfactory to the
Company. The Company intends to pay for future acquisitions
using cash, capital stock, assumption of indebtedness and/or
notes, although there can be no assurance that the owners of the
businesses that the Company may wish to acquire will be willing
to accept non-cash consideration in whole or in part.
Capitalized Expenditures
In accordance with generally accepted accounting principles,
the Company capitalizes certain expenditures and advances
relating to its acquisitions, pending acquisitions and landfill
development and expansion projects. Indirect acquisition costs,
such as executive salaries, general corporate overhead, public
affairs and other corporate services, are expensed as incurred.
The Company's policy is to charge against earnings any
unamortized capitalized expenditures and advances (net of any
portion thereof that the Company estimates will be recoverable,
through sale or otherwise) relating to any operation that is
permanently shut down, any pending acquisition that is not
consummated, and any landfill development or expansion project
that is not successfully completed. There can be no assurance
that the Company in future periods will not be required to incur
a charge against earnings in accordance with such policy, which
charge, depending upon the magnitude thereof, could adversely
affect the Company's results of operations.
Availability of Acquisition Targets
The Company's ongoing acquisition program is a key element
of its strategy for expanding as an integrated provider of
nonhazardous solid waste management services. Consequently, the
future growth of the Company depends in large part upon the
successful continuation of this program. The Company, however,
in some cases may encounter substantial competition in its
efforts to acquire landfills and collection operations and there
can be no assurance that the Company will succeed in locating
appropriate acquisition candidates that can be acquired at price
levels that the Company considers appropriate.
Commodity Risk Upon Resale of Recyclables
A portion of the Company's revenues from waste reuse and
reduction programs is derived from the sale of recyclable waste
products. The resale prices of, and demand for, recyclable waste
products can vary significantly and are subject to changing
market conditions. Accordingly, the Company's revenues from such
sales may materially vary from period to period.
Alternatives to Landfill Disposal
Alternatives to landfill disposal, such as recycling and
composting, are increasingly being used. In addition, in certain
of the Company's markets incineration is an alternative to
landfill disposal. There also has been an increasing trend at
the state and local levels to mandate recycling and waste
reduction at the source and to prohibit the disposal of certain
type of wastes, such as yard wastes, at landfills. These
developments may result in the volume of waste going to landfills
being reduced in certain areas, which may affect the Company's
ability to operate its landfills at their full capacity and/or
affect the prices that can be charged for landfill disposal
services. For example, certain states have adopted bans on the
disposal of yard waste or leaves in landfills located in those
states and/or adopted rules restricting or limiting disposal of
tires at landfills. In addition, each of the states in which the
Company operates landfills has adopted plans or requirements
which set goals for specified percentages of certain solid waste
items to be recycled. These recycling goals will be phased in
over the next few years.
Financial Assurance Obligations
The Company is often required to post a performance bond or
a bank letter of credit or to provide other forms of financial
assurance in connection with municipal residential collection
contracts and the operation or closure of landfills. If the
Company were unable to obtain surety bonds or letters of credit
in sufficient amounts or at reasonable rates, or to provide other
required forms of financial assurance, it might be precluded from
entering into additional municipal collection contracts or
obtaining or retaining required landfill permits and approvals.
See the Annual Report incorporated by reference herein, under
Item 7 "Management's Discussion and Analysis of Financial
Condition and Results of Operations Liquidity and Capital
Resources" and Item 1 "Business Liability Insurance and Bonding",
and the 1996 10-Qs incorporated by reference herein, under Item
2 "Management's Discussion and Analysis of Financial Condition
and Results of Operations".
Competition
The solid waste collection and disposal business is highly
competitive and requires substantial amounts of capital. The
Company competes with numerous waste management companies, a
number of which have significantly larger operations and greater
resources than the Company. The Company also competes with those
counties and municipalities that maintain their own waste
collection and disposal operations. These counties and
municipalities may have financial advantages due to the
availability to them of tax revenues and tax exempt financing.
In addition, competitors may reduce the price of their services
in an effort to expand market share or to win competitively bid
municipal contracts.
Economic Conditions
The Company's business is affected by general economic
conditions. There can be no assurance that an economic downturn
will not result in a reduction in the volume of waste being
disposed of at the Company's operations and/or the price that the
Company can charge for its services.
Weather Conditions
Protracted periods of inclement weather may adversely affect
the Company's operations by interfering with collection and
landfill operations, delaying the development of landfill
capacity and/or reducing the volume of waste generated by the
Company's customers. In addition, particularly harsh weather
conditions may result in the temporary suspension of certain of
the Company's operations.
Seasonality
The Company's revenues tend to be somewhat lower in the
winter months. This is generally reflected in the Company's
first quarter results and may also be reflected in its fourth
quarter results. This is primarily attributable to the fact that
(i) the volume of waste relating to construction and demolition
activities and activities relating to the remediation of
contaminated soils tends to increase in the spring and summer
months and (ii) the volume of waste relating to industrial and
residential waste in the regions where the Company operates tends
to decrease during the winter months.
Dependence on Senior Management
The Company is highly dependent upon its senior management
team. The loss of the services of any member of senior
management may have a material adverse effect on the Company. The
Company does not maintain "key man" life insurance with respect
to members of senior management.
Absence of Trading Market for the Notes
There is no existing public trading market for the Notes and
there can be no assurance as to the liquidity of any such market
that may develop, the ability of the holders of Notes to sell
such securities, the price at which the holders of Notes would be
able to sell such securities or whether a trading market, if it
develops, will continue. If such a market were to exist, the
Notes could trade at prices higher or lower than their principal
amount, depending on many factors, including prevailing interest
rates, the market for similar securities and the operating
results of the Company. The Company has not applied and does not
intend to apply for listing of the Notes on any securities
exchange or for inclusion of the Notes on any automated quotation
system.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of
the Resale Securities by the Selling Security Holders.
RATIO OF EARNINGS TO FIXED CHARGES
The table below sets forth the ratio of earnings to fixed
charges for the Company for the periods indicated. For purposes
of computing such ratio, (i) earnings consist of income before
income taxes plus fixed charges (other than interest capitalized)
and (ii) fixed charges consist of interest expense, interest
capitalized, amortization of debt issuance costs and discount and
premium, and the estimated interest portion of rental expense.
Year Ended December 31, Nine Months
- ---------------------------------- Ended
1991 1992 1993 1994 1995 September 30,1996
- ---- ---- ---- ---- ---- -----------------
0.6 2.0 4.1 4.9 4.6 4.2
DESCRIPTION OF NOTES
The Company issued an aggregate of $150,000,000 principal
amount of Notes on June 5, 1996. The Notes were issued under an
Indenture dated as of June 5, 1996 (the "Indenture"), between the
Company and Bankers Trust Company, as Trustee (the "Trustee""),
copies of which are available for inspection at the Corporate
Trust Offices of the Trustee in the Borough of Manhattan, The
City of New York and in London, England. The Indenture is filed
(through incorporation by reference) as an exhibit to the
Registration Statement of which this Prospectus forms a part.
Wherever particular defined terms of the Indenture (including the
Notes and the various forms thereof) are referred to, such
defined terms are incorporated herein by reference (the Notes
being referred to in the Indenture as "Securities"). References
in this section to the "Company" are solely to United Waste
Systems, Inc. and not to its subsidiaries. The following
summaries of certain provisions of the Indenture do not purport
to be complete and are subject to, and are qualified in their
entirety by reference to, the detailed provisions of the Notes
and the Indenture, including the definitions therein of certain
terms. Parenthetical references to section numbers within and
following certain paragraphs in this Section are to provisions of
the Indenture.
General
The Notes are unsecured subordinated obligations of the
Company and are limited to $150,000,000 aggregate principal
amount. The Notes mature on June 1, 2001, and payment in full of
the principal amount of the Notes will be due on such date. The
Notes bear interest at a rate of 4 1/2% per annum from June 5,
1996, payable semiannually on June 1 and December 1 of each year
(each, an "Interest Payment Date"), commencing on December 1,
1996. Interest payable per $1,000 principal amount of Notes for
the period from June 5, 1996 to December 1, 1996 will be $22.
(Section 3.1) Additional Interest may be payable on the Notes in
the amounts, and under the circumstances, described under "-Registration
Rights" and "Description of Registration Rights
Agreement".
The Notes are convertible into Common Stock at a conversion
price of $32.50 per share, subject to adjustment upon the
occurrence of certain events described below under "-Conversion
Rights", at any time on or after September 3, 1996 and prior to
the close of business on the maturity date, unless previously
redeemed or repurchased in which cases, not after the close of
business on the fifth Trading Day (as defined below) prior to the
date of redemption or the second Trading Day prior to the date of
repurchase. (Sections 2.2 and 12.1) Such conversion price has
been adjusted for a two-for-one stock split (in the form of a
100% stock dividend) effected by the Company on June 18, 1996.
The Notes are redeemable (a) in the event of certain
developments involving U.S. taxes or certification requirements
as described below under "-Redemption-Redemption for Taxation
Reasons", at a redemption price of 100% of the principal amount
of the Notes to be redeemed, plus accrued interest to the
redemption date and (b) at the option of the Company, on or after
June 1, 1999, in whole or in part, at the redemption prices set
forth below under "-Redemption-Optional Redemption", plus accrued
interest to the redemption date. "Trading Days" means (i) if the
common stock is listed or admitted for trading on any national
securities exchange, days on which such national securities
exchange is open for business; (ii) if the common stock is quoted
on the Nasdaq National Market or any other system of automated
dissemination of quotations of securities prices, days on which
trades may be effected through such system; or (iii) if the
common stock is not listed or admitted for trading on any
national securities exchange or quoted on the Nasdaq National
Market or any other system of automated dissemination of
quotation of securities prices, days on which the common stock is
traded regular way in the over-the-counter market and for which a
closing bid and a closing asked price for the common stock are
available. (Sections 1.1, 2.2 and 15.1)
Form and Denomination
A portion of the outstanding Notes are in the form of
registered Notes without coupons ("Registered Notes")and a
portion are in the form of bearer notes with coupons
attached("Bearer Notes"). The Registered Notes may be issued in
denominations of $1,000 and integral multiples of $1,000 in
excess thereof. Bearer Notes may be issued only in denominations
of $5,000. Bearer Notes may be exchanged for Registered Notes in
authorized denominations as provided in the Indenture.
Registered Notes may not be exchanged for Bearer Notes. (Sections
1.1, 2.2, 3.2, 3.4 and 3.5) See "-Transfer and Exchange".
Registered Notes which are Restricted Securities (as defined
in the Indenture), and any Common Stock issued upon conversion of
Restricted Securities, are required to bear certain restrictive
legends as provided in the Indenture. Such legends provide for,
among other things, certain restrictions on transfer. Any Notes
that are covered by this Prospectus and are transferred by a
Selling Security Holder pursuant to the Registration Statement of
which this Prospectus forms a part will cease to be a Restricted
Security upon completion of such transfer, provided that the
prospectus delivery requirements of the Securities Act are
complied with and the Selling Security Holder delivers a notice
of sale to the Trustee substantially in the form of Exhibit A
hereto.
The holder of a Registered Note may transfer such Note,
subject to compliance with the provisions of any restrictive
legend required by the Indenture, by surrendering such Notes at
(i) the office or agency maintained by the Company for such
purpose in the Borough of Manhattan, The City of New York, which
initially will be the office of the Trustee or (ii) the office of
any transfer agent appointed by the Company. (Sections 2.2, 2.6
and 3.5)
Certain of the outstanding Registered Notes are in the form
of global notes (the "Global Notes") that have been deposited
with the Trustee as custodian for The Depository Trust Company
("DTC")and registered in the name of a nominee of DTC. AS LONG
AS DTC, OR ITS NOMINEE, IS THE REGISTERED HOLDER OF A GLOBAL
NOTE, DTC OR SUCH NOMINEE, AS THE CASE MAY BE, WILL BE CONSIDERED
THE SOLE OWNER AND HOLDER OF THE NOTES REPRESENTED BY SUCH GLOBAL
NOTE FOR ALL PURPOSES UNDER THE INDENTURE AND THE NOTES.
Investors may hold their interests in a Global Note directly
through DTC, if they are participants in such system, or
indirectly through organizations which are participants in
such system. All interests in a Global Note, may be subject to
the procedures and requirements of DTC. Without limiting the
foregoing, no beneficial owner of an interest in a Global Note
will be able to transfer that interest except in accordance with
DTC's applicable procedures (in addition to those under the
Indenture).
Payments of the principal of, premium, if any, and interest
on Global Notes will be made to DTC or its nominee as the
registered owner thereof. Neither the Company, the Trustee nor
any of their respective agents has any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in the Global
Notes or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interest.
DTC has advised the Company that it is a limited purpose
trust company organized under the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within
the meaning of the Uniform Commercial Code and a "Clearing
Agency" registered pursuant to the provisions of Section 17A of
the Exchange Act. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of securities
certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and
certain other organizations. DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of
Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers,
banks, and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly
or indirectly. The Rules applicable to DTC and its Participants
are on file with the Commission.
Conversion Rights
The Holder of any Note has the right, at the Holder's
option, to convert any Bearer Note and to convert any portion of
the principal amount of a Registered Note that is an integral
multiple of $1,000 (provided that the unconverted portion of such
Registered Note is an integral multiple of $1,000), into shares
of Common Stock at any time on or after September 3, 1996, and
prior to the close of business on the maturity date, unless
previously redeemed or purchased, at a conversion price of $32.50
per share (subject to adjustment as described below). Such
conversion price has been adjusted for a two-for-one stock split
(in the form of a 100% stock dividend) effected by the Company on
June 18, 1996. The right to convert a Note called for redemption
or delivered for repurchase will terminate at the close of
business on the fifth Trading Day prior to the redemption date
for such Note or the second Trading Day preceding the repurchase
date, as the case may be. (Sections 2.2 and 12.1)
The right of conversion attaching to any Note may be
exercised by the Holder by delivering the Note to the specified
office of a Conversion Agent (which in the case of a Bearer Note
will only be the office of any Conversion Agent outside the
United States; see "-Payment and Conversion"), accompanied by a
duly signed and completed notice of conversion, a copy of which
may be obtained from any Conversion Agent. The conversion date
will be the date on which the Note and the duly signed and
completed notice of conversion are so delivered. As promptly as
practicable on or after the conversion date, the Company will
issue and deliver to the Trustee a certificate or certificates
for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a
share; such certificate will be sent by the Trustee to the
Holder. Each Bearer Note surrendered for conversion must be
surrendered with all coupons maturing after the date of
conversion. Coupons maturing on or before the date of conversion
and not in default will be payable against surrender thereof, and
coupons so maturing but in default will continue to be payable,
as set forth in the Indenture, notwithstanding the exercise of
the right of conversion by the Holder of the Note to which the
coupons appertain, but coupons maturing after the date of
conversion will not be paid. Any Registered Note surrendered for
conversion during the period from the close of business on any
Regular Record Date (as defined below) to the opening of business
on the next succeeding Interest Payment Date shall be accompanied
by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of
such Registered Notes being surrendered for conversion, except
that if any Registered Note or portions thereof has been called
for redemption on a redemption date or is to be repurchased on a
repurchase date between a Regular Record Date and the
corresponding Interest Payment Date and, as a result, the right
to convert such Registered Note called for redemption would
terminate during such period, then the Holder of such Registered
Note who converts such Registered Note or a portion thereof will
be entitled to receive the amount of interest so payable and
shall not be required to repay such interest upon surrender of
such Registered Note for conversion. In the case of any
Registered Note which has been converted after any Regular Record
Date and on or prior to the next Interest Payment Date, interest
whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such
conversion, and such interest shall be paid to the Holder of such
Registered Note on such Regular Record Date. As a result of the
foregoing provisions, except as provided above, Holders that
surrender Notes for conversion on a date that is not an Interest
Payment Date will not receive any interest for the period from
the Interest Payment Date next preceding the date of conversion
to the date of conversion or for any later period, even if the
Notes are surrendered after a notice of redemption (except for
the payment of interest on Registered Securities called for
redemption on a redemption date or to be repurchased on a
repurchase date between a Regular Record Date and the Interest
Payment Date to which it relates). No other payment or
adjustment for interest, or for any dividends in respect of
Common Stock, will be made upon conversion. Holders of Common
Stock issued upon conversion will not be entitled to receive any
dividends payable to holders of Common Stock as of any record
time before the close of business on the conversion date. No
fractional shares will be issued upon conversion but, in lieu
thereof, the Company will calculate an appropriate amount to be
paid in cash based on the market price of Common Stock at the
close of business on the day of conversion. "Regular Record
Date" for interest payable in respect of any Registered Note on
any Interest Payment Date means May 15 or November 15 (whether or
not a Business Day), as the case may be, next preceding such
Interest Payment Date. (Sections 1.1, 2.2, 3.7, 12.2 and 12.3)
With regard to a Holder delivering a Note for conversion,
the Company will pay any taxes or duties in respect of the issue
or delivery of Common Stock on conversion, but the Company shall
not be required to pay any tax or duty which may be payable in
respect of any transfer involved in the issue or delivery of the
Common Stock in a name other than that of the Holder of the Note.
Certificates representing shares of Common Stock will not be
issued or delivered unless and until the person requesting such
issuance has paid to the Company the amount of any such tax or
duty or has established to the satisfaction of the Company that
such tax or duty has been paid. (Section 12.8)
The conversion price is subject to adjustment in certain
events, including: (a) dividends (and other distributions)
payable in Common Stock on shares of capital stock of the
Company, (b) the issuance to all holders of Common Stock of
rights, options or warrants entitling them to subscribe for or
purchase Common Stock at less than the then current market price
(determined as provided in the Indenture) of Common Stock, (c)
subdivisions, combinations and reclassifications of Common Stock,
(d) distributions to all holders of Common Stock of evidences of
indebtedness of the Company, shares of capital stock, or property
(including securities, but excluding those dividends, rights,
options, warrants and distributions referred to above, dividends
and distributions paid exclusively in cash and distributions upon
mergers or consolidations to which the next succeeding paragraph
applies), (e) distributions consisting exclusively of cash
(excluding any cash portion of distributions referred to in (d)
above, or cash distributed upon a merger or consolidation to
which the next succeeding paragraph applies) to all holders of
Common Stock in an aggregate amount that, combined together with
(i) the aggregate amount of any other such all-cash distributions
made within the preceding 12 months in respect of which no
adjustment has been made and (ii) the aggregate amount of any
cash and the fair market value of other consideration payable in
respect of any tender offer by the Company or any of its
subsidiaries for Common Stock concluded within the preceding 12
months in respect of which no adjustment has been made, exceeds
12.5% of the Company's market capitalization (being the product
of the then current market price of the Common Stock and the
number of shares of Common Stock then outstanding) on the record
date for such distribution, and (f) the successful completion of
a tender offer made by the Company or any of its subsidiaries for
Common Stock which involves an aggregate consideration that,
together with (i) the aggregate of cash and other consideration
payable in a tender offer by the Company or any of its
subsidiaries for Common Stock expiring within the 12 months
preceding the expiration of such tender offer in respect of which
no adjustment has been made and (ii) the aggregate amount of any
cash distributions to all holders of Common Stock within the 12
months preceding the expiration of such tender offer in respect
of which no adjustments have been made, exceeds 12.5% of the
Company's market capitalization on the expiration of such tender
offer. The Company may make such reductions in the conversion
price in addition to those required in the foregoing provisions
as it considers to be advisable in order to avoid or diminish any
income tax to holders of Common Stock resulting from any
dividend, distribution of stock or issuance or rights or warrants
to purchase or subscribe for stock or from any event treated as
such for income tax purposes. No adjustment of the conversion
price will be required to be made until the cumulative
adjustments amount to 1.0% or more of the conversion price.
(Section 12.4) The Company shall compute any adjustments to the
conversion price pursuant to this paragraph and will give notice
of any adjustments. (Section 12.5) See "-Notices".
In case of any consolidation or merger of the Company with
or into another Person or any merger of another Person into the
Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of the
Common Stock) or any sale or transfer of all or substantially all
of the assets of the Company, each Note then outstanding will,
without the consent of the Holder of any Note or coupon, become
convertible only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale
or transfer by a holder of the number of shares of Common Stock
into which such Note was convertible immediately prior thereto
(assuming such holder of Common Stock failed to exercise any
rights of election and that such Note was then convertible).
(Section 12.11)
If at any time the Company makes a distribution of property
to its stockholders which would be taxable to such stockholders
as a dividend for federal income tax purposes (e.g.,
distributions of evidences of indebtedness or assets of the
Company, but generally not stock dividends on Common Stock or
rights to subscribe for Common Stock) and, pursuant to the anti-dilution
provisions of the Indenture, the number of shares into
which Notes are convertible is increased, such increase may be
deemed for federal income tax purposes to be the payment of a
taxable dividend to Holders of Notes.
Subordination
The payment of the principal of, premium, if any, and
interest on, the Notes and coupons will be subordinated in right
of payment to the extent set forth in the Indenture to the prior
payment in full of all Senior Indebtedness of the Company.
Senior Indebtedness means (a) the principal of (and premium, if
any) and interest (including interest accruing after the filing
of a petition initiating any proceeding under any state, federal
or foreign bankruptcy laws whether or not allowable as a claim in
such proceeding) on the indebtedness outstanding under the
Company's Third Amended and Restated Credit Agreement, dated as
of August 16, 1995, and the Company's $75,000,000 principal
amount of 7.67% Senior Secured Notes Due September 1, 2005,
including any modifications, refundings, deferrals, renewals,
restatements or extensions of any such indebtedness and all fees,
charges, expenses, reimbursements and indemnification obligations
and other amounts payable thereunder, (b) all other indebtedness
of the Company (including indebtedness of others guaranteed by
the Company) other than the Notes, whether outstanding on the
date of the Indenture or thereafter created, incurred or assumed,
which is (i) for money borrowed or (ii) evidenced by a note or
similar instrument given in connection with the acquisition of
any businesses, properties or assets of any kind, (c) obligations
of the Company as lessee under leases required to be capitalized
on the balance sheet of the lessee under generally accepted
accounting principles, (d) obligations of the Company under
interest rate and currency swaps, caps, floors, collars or
similar agreements or arrangements intended to protect the
Company against fluctuations in interest or currency exchange
rates and (e) renewals, extensions, modifications, restatements
and refundings of any such indebtedness or obligation; provided,
however, that Senior Indebtedness shall not include any such
indebtedness or obligation (w) if the terms of such indebtedness
or obligation (or the terms of the instrument under which, or
pursuant to which, it is issued) provides that such indebtedness
or obligation is not superior in right of payment to the Notes,
(x) if such indebtedness or obligation is non-recourse to the
Company, (y) under any conditional sale contract or any account
payable or other indebtedness created or assumed by the Company
in the ordinary course of business in connection with the
obtaining of inventories or services or (z) if such indebtedness
or obligation is unsecured. (Sections 1.1 and 13.1)
Upon any payment or distribution of assets to creditors upon
any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshalling of assets or
any bankruptcy, insolvency or similar proceedings of the Company,
the holders of all Senior Indebtedness will first be entitled to
receive payment in full of all amounts due or to become due
thereon before the holders of the Notes will be entitled to
receive any payment in respect of the principal of or premium, if
any, or interest on the Notes. (Section 13.2) In the event of the
acceleration of the maturity of any Notes, the holders of all
Senior Indebtedness outstanding at the time of such acceleration
will first be entitled to receive payment in full of all amounts
due or to become due thereon before the Holders of the Notes will
be entitled to receive any payment upon the principal of or
premium, if any, or interest on the Notes. (Section 13.3) No
payments on account of principal, premium, if any, or interest in
respect of the Notes may be made if there shall have occurred and
be continuing a default in any payment with respect to Senior
Indebtedness, or an event of default with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the
maturity thereof, or if any judicial proceeding shall be pending
with respect to any such default. (Section 13.4) For purposes of
the subordination provisions, the payment, issuance or delivery
of cash, property or securities (other than "junior securities")
upon conversion of a Note will be deemed to constitute payment on
account of the principal of such Note. (Section 13.15)
By reason of such subordination, in the event of insolvency,
creditors of the Company who are holders of Senior Indebtedness
may recover more, ratably, than the Holders of the Notes, and
such subordination may result in a reduction or elimination of
payments to the Holders of the Notes.
As of September 30, 1996, the principal amount of Senior
Indebtedness outstanding was approximately $116.1 million. In
addition, the Notes will be structurally subordinated to all
indebtedness and other liabilities (including trade payables and
lease obligations) of the Company's subsidiaries, as any right of
the Company to receive any assets of its subsidiaries upon their
liquidation or reorganization (and the subsequent right of the
Holders of the Notes to participate in those assets) will be
effectively subordinated to the claims of that subsidiary's
creditors (including trade creditors), except to the extent that
the Company itself is recognized as a creditor of such
subsidiary, in which case the claims of the Company would still
be subordinate to any security interest in the assets of such
subsidiary and any indebtedness of such subsidiary senior to that
held by the Company. As of September 30, 1996, there was
outstanding approximately $25.7 million of indebtedness of
subsidiaries of the Company (excluding indebtedness to the
Company) and $134.8 million of other liabilities (other than
liabilities to the Company).
The Indenture does not limit the Company's ability to incur
Senior Indebtedness or any other indebtedness.
Redemption
Optional Redemption
Subject to the discussion under "-Redemption for Taxation
Reasons" below, the Notes may not be redeemed at the option of
the Company prior to June 1, 1999. Thereafter, the Notes may be
redeemed, in whole or in part, at the option of the Company, at a
redemption price equal to 101.8% of the principal amount for the
12-month period beginning June 1, 1999 and 100.9% of the
principal amount for the 12-month period beginning June 1, 2000,
in each case together with accrued interest to the date of
redemption, upon not less than 30 nor more than 60 days' prior
notice as provided under "-Notices" below. (Sections 2.2, 11.1,
11.5 and 11.7)
Redemption for Taxation Reasons
If the Company has or will become obligated to pay
Additional Amounts (as described below under "-Payment of
Additional Amounts") as a result of any change in, or amendment
to, the laws (including any regulations or rulings promulgated
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or any
change in, or amendment to, the application or official
interpretation of such laws, regulations or rulings (any such
change or amendment being herein referred to as a "Tax Law
Change"), and such obligation cannot be avoided by the Company
taking reasonable measures available to it, any Notes as to which
such Additional Amounts have or will become payable may be
redeemed, at the option of the Company, in whole but not in part.
Such redemption shall be upon not less than 30 nor more than 60
days' prior notice as provided under "-Notices" below, at a
redemption price equal to 100% of the principal amount of the
Notes to be redeemed, plus accrued interest to the redemption
date and any Additional Amounts then payable; provided, that (1)
no such notice of redemption shall be given earlier than 90 days
prior to the earliest date on which the Company would be
obligated to pay any such Additional Amounts were a payment in
respect of the Notes then due and (2) at the time such notice of
redemption is given, such obligation to pay such Additional
Amounts remains in effect. Prior to the publication of any
notice of redemption pursuant to this paragraph, the Company
shall deliver to the Trustee (a) an officer's certificate stating
that the Company is entitled to effect such redemption and
setting forth a statement of facts showing that the conditions
precedent to the right of the Company so to redeem have occurred
and (b) an opinion of counsel selected by the Company, which
counsel shall be reasonably acceptable to the Trustee, to the
effect that the Company has or will become obligated to pay such
Additional Amounts as a result of a Tax Law Change. The
Company's right to redeem the Notes shall continue as long as the
Company is obligated to pay such Additional Amounts,
notwithstanding that the Company shall have theretofore made
payments of Additional Amounts. (Sections 1.1, 2.2, 11.1 and
11.3)
In addition, if the Company determines, based upon an
opinion of counsel selected by the Company, which counsel shall
be reasonably acceptable to the Trustee, that, as a result of a
Tax Law Change, any payment made outside the United States by the
Company or any of its Paying Agents of the full amount of
principal, premium, if any, or interest due with respect to any
Bearer Note or coupon appertaining thereto would be subject to
any certification, identification or other information reporting
requirement of any kind, the effect of which requirement is the
disclosure to the Company, any Paying Agent or any governmental
authority of the nationality, residence or identity of a
beneficial owner of such Bearer Note or coupon who is not a U.S.
person as defined below under "-Payment of Additional Amounts"
(other than such a requirement (a) which would not be applicable
to a payment made by the Company or any one of its Paying Agents
(i) directly to the beneficial owner or (ii) to any custodian,
nominee or other agent of the beneficial owner, (b) which can be
satisfied by the custodian, nominee or other agent certifying
that the beneficial owner is not a U.S. person, provided that, in
each case referred to in clauses (a) (ii) and (b), payment by
such custodian, nominee or agent to such beneficial owner is not
otherwise subject to any such requirement, or (c) which would not
be applicable but for the fact that such Bearer Note constitutes
a "United States real property interest" as defined in Section
897(c)(1) of the Code, with respect to the beneficial owner of
such Bearer Note), the Company at its election will either (x)
redeem the Bearer Notes, as a whole but not in part, at a
redemption price equal to 100% of the principal amount thereof,
plus accrued interest to the redemption date, or (y) if and so
long as the conditions of the third paragraph under "-Payment of
Additional Amounts" are satisfied, pay the additional amounts
specified in such paragraph. The Company will make such
determination and election and notify the Trustee, thereof in
writing as soon as practicable, and the Trustee will promptly
give notice of such determination (the "Determination Notice"),
in each case stating the effective date of such certification,
identification or information reporting requirement, whether the
Company will redeem the Bearer Notes or will pay the additional
amounts specified in the third paragraph under "-Payment of
Additional Amounts" and (if applicable) the last date by which
the redemption of the Bearer Notes shall take place. If the
Company shall elect to redeem the Bearer Notes pursuant to clause
(x) above, such redemption shall take place on such date, not
later than one year after publication of the Determination
Notice, as the Company shall elect by notice given in writing to
the Trustee, at least 75 days before that date, unless shorter
notice shall be acceptable to the Trustee. Notwithstanding the
foregoing, the Company will not so redeem the Bearer Notes if the
Company, based upon an opinion of counsel selected by the
Company, which counsel shall be reasonably acceptable to the
Trustee, subsequently determines, not less than 30 days prior to
the Redemption Date, that subsequent payments would not be
subject to any such requirement, in which case the Company will
notify the Trustee in writing of its determination not to so
redeem the Bearer Notes, and the Trustee will promptly give
notice to the Holders of the Bearer Notes of that determination
and any earlier redemption notice will thereupon be revoked and
of no further effect. If the Company elects as provided in
clause (y) above to pay additional amounts, the Company may, as
long as the Company is obligated to pay such additional amounts,
redeem all the Bearer Notes, at any time, as a whole but not in
part, upon not less than 30 nor more than 60 days, notice prior
to the redemption date, at a redemption price equal to 100% of
the principal amount thereof plus accrued interest to the
redemption date and any additional amounts then payable.
(Sections 2.2 and 11.3)
Payment and Conversion
Bearer Notes and coupons will be payable in U.S. dollars
against surrender thereof, subject to any applicable laws and
regulations, at such offices or agencies outside the United
States as the Company may appoint from time to time. The Company
has appointed the Corporate Trust Office of the Trustee in
London, England as such an office. At the option of the Holder,
such payment will be made by dollar check drawn on a bank in the
Borough of Manhattan, The City of New York or by transfer of U.S.
dollars to an account (such a transfer to be made only to a
Holder of an aggregate principal amount of Notes in excess of
$2,000,000) maintained by the payee with a bank outside the
United States. No payment with respect to any Bearer Note or
coupon will be made at the Corporate Trust Office of the Trustee
in the Borough of Manhattan, The City of New York, or any office
or agency of the Company in the United States, or by transfer to
an account, maintained with a bank located in the United States
or by check mailed to any address in the United States.
Notwithstanding the foregoing, payments with respect to Bearer
Notes and coupons may be made at the office of the Trustee or
other Paying Agent, if one is appointed, in the Borough of
Manhattan, The City of New York, if payment at all offices
maintained outside the United States for such purpose by the
Company is illegal or effectively precluded by exchange controls
or other similar restrictions on the full payment or receipt of
such amounts in U.S. dollars, as determined by the Company.
(Section 2.2)
The principal of the Registered Notes will be payable in
U.S. dollars, against surrender thereof at the Corporate Trust
Office of the Trustee or at such other office or agency of the
Company as may be designated by it for such purpose in the
Borough of Manhattan, The City of New York, in U.S. currency by
U.S. dollar check drawn on, or by transfer to a U.S. dollar
account (such a transfer to be made only to a Holder of an
aggregate principal amount of Registered Notes in excess of
$2,000,000 and only if such Holder shall have furnished wire
instructions in writing to the Trustee no later than 15 days
prior to the relevant payment date) maintained by the Holder with
a bank in the Borough of Manhattan, The City of New York.
Registered Notes will bear interest at a rate of 4 1/2% per annum
from June 5, 1996 or from the most recent Interest Payment Date
to which interest has been paid or provided for, payable semi-annually on June 1
and December 1 of each year, commencing
December 1, 1996, to the Person in whose name the Registered Note
(or any predecessor Registered Note) is registered at the close
of business on the preceding May 15 or November 15, as the case
may be. Payment of interest on a Registered Note may be made by
U.S. dollar check drawn on a bank in the Borough of Manhattan,
The City of New York, mailed to the address of the person
entitled thereto as such address shall appear in the Security
Registrar, or, upon written application by the Holder to the
Security Registrar setting forth instructions not later than the
relevant Record Date, by transfer to a U.S. dollar account (such
a transfer to be made only to a Holder of an aggregate principal
amount of Registered Notes in excess of $2,000,000) maintained by
the Holder with a bank in the Borough of Manhattan, The City of
New York. No transfer to a dollar account will be made unless
the Trustee has received written wire instructions not less than
15 days prior to the relevant payment date. (Section 2.2)
Any payment on the Notes due on any day which is not a
Business Day need not be made on such day, but may be made on the
next succeeding Business Day with the same force and effect as if
made on such due date, and no interest shall accrue on such
payment for the period from and after such date. "Business Day",
when used with respect to any place of payment, place of
conversion or any other place, as the case may be, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in such place of payment, place
of conversion or other place, as the case may be, are authorized
or obligated by law or executive order to close. (Sections 1.1
and 2.2)
Notes may be surrendered for conversion, subject to any
applicable laws and regulations, at the office of any Conversion
Agent outside the United States. In addition, Registered Notes
may be surrendered for conversion at the Corporate Trust Office
of the Trustee in the Borough of Manhattan, The City of New York.
Notes surrendered for conversion must be accompanied by
appropriate notices, any unmatured coupons and any payments in
respect of interest or taxes, as applicable, as described above
under "-Conversion Rights". (Sections 2.2 and 12.2)
The Company has initially appointed the Trustee as Paying
Agent and Conversion Agent at its Corporate Trust Office (i) in
the Borough of Manhattan, The City of New York (Bankers Trust
Company, Corporate Trust & Agency Group, Four Albany Street, New
York, NY 10006), and (ii) in London, England (Bankers Trust
Company, 1 Appold Street, Broadgate, London EC2A 2HE). The
Company may at any time terminate the appointment of any Paying
Agent or Conversion Agent and appoint additional or other Paying
Agents and Conversion Agents, provided that until the Notes have
been delivered to the Trustee for cancellation, or moneys
sufficient to pay the principal of, premium, if any, and interest
on the Notes have been made available for payment and either paid
or returned to the Company as provided in the Indenture, it will
maintain an office or agency in the Borough of Manhattan, The
City of New York for surrender of Notes for conversion, and in a
Western European city for payments with respect to the Notes and
for the surrender of Notes for conversion. Notice of any such
termination or appointment and of any change in the office
through which any Paying Agent or Conversion Agent will act will
be given in accordance with "-Notices" below. (Section 10.2)
Bearer Notes should be presented for payment upon redemption
or repurchase together with all unmatured coupons, failing which
the amount of any missing unmatured coupons will be deducted from
the sum due for payment or the surrender of such missing coupons
or coupon may be waived by the Company and the Trustee or the
Paying Agent if there be furnished to them such security or
indemnity or they may require to save each of them and any Paying
Agent harmless. Each amount so deducted will be paid in the
manner described in the first paragraph under this heading
against surrender of the related missing coupon. Interest
payable on any Bearer Notes on any redemption date or repurchase
date which is an Interest Payment Date will be paid to the
Holders of the coupons maturing on such Interest Payment Date.
Interest payable on Registered Notes on any redemption date or
repurchase date that is an Interest Payment Date will be paid to
the Holders of record as of the immediately preceding Regular
Record Date. (Sections 11.7 and 14.2)
All moneys deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of
principal of, premium, if any, or interest on any Notes, which
remain unclaimed at the end of two years after such payment has
become due and payable will be paid to the Company, and the
Holder of such Note or any coupon appertaining thereto will
thereafter, as an unsecured general creditor, look only to the
Company for payment thereof. (Section 10.3)
Payment of Additional Amounts
The Company will pay to the Holder of any Note or any coupon
appertaining thereto who is not a U.S. person such additional
amounts ("Additional Amounts") as may be necessary in order that
every net payment of the principal of, premium, if any, and
interest on such Note (including any payment on redemption or
repurchase), after deduction or withholding for or on account of
any present or future tax, assessment or governmental charge
imposed upon or as a result of such payment by the United States
or any political subdivision or taxing authority thereof or
therein, will not be less than the amount provided for in such
Note or in such coupon to be then due and payable; provided,
however, that the foregoing obligation to pay Additional Amounts
will not apply to:
(a) any tax, assessment or other governmental charge which
would not have been so imposed but for (i) the existence of any
present or former connection between such Holder (or between a
fiduciary, settlor, beneficiary, member, shareholder of or
possessor of a power over such Holder, if such Holder is an
estate, a trust, a partnership or a corporation) and the United
States or any political subdivision or taxing authority thereof
or therein, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or
possessor) being or having been a citizen or resident of the
United States or treated as a resident thereof, or being or
having been engaged in trade or business or present therein, or
having or having had a permanent establishment therein, or (ii)
such Holder's present or former status as a personal holding
company, a foreign personal holding company with respect to the
United States, a controlled foreign corporation, a passive
foreign investment company, or a foreign private foundation or
foreign tax-exempt entity for United States tax purposes, or a
corporation which accumulates earnings to avoid United States
federal income tax;
(b) any tax, assessment or other governmental charge which
would not have been so imposed but for the presentation by the
Holder of such Notes or any coupon appertaining thereto for
payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which
would not have been imposed but for the failure to comply with
any certification, identification or other reporting requirements
concerning the nationality, residence, identity or connection
with the United States of the Holder or beneficial owner of such
Note or any coupon appertaining thereto, if compliance is
required by statute or by regulation or ruling of the United
States Treasury Department as a precondition to exemption from
such tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which
is payable otherwise than by deduction or withholding from
payments of principal of, premium, if any, or interest on such
Note;
(f) any tax, assessment or other governmental charge imposed
as a result of a person's past or present actual or constructive
ownership, including by virtue of the right to convert Notes, of
10% or more of the total combined voting power of all classes of
stock of the Company entitled to vote;
(g) any tax, assessment or other governmental charge
required to be withheld by any Paying Agent from any payment of
the principal of, premium, if any, or interest on such Note, if
such payment can be made without such withholding by any other
Paying Agent in Western Europe;
(h) any tax, assessment or other governmental charge imposed
on a Holder that is a partnership or a fiduciary, but only to the
extent that any beneficial owner or member of the partnership or
beneficiary or settlor with respect to the fiduciary would not
have been entitled to the payment of Additional Amounts had the
beneficial owner, member, beneficiary or settlor directly
received its beneficial or distributive share of payments on the
Note;
(i) any tax, assessment or other governmental charge which
would not have been imposed but for the fact that such Note
constitutes a "United States real property interest" as defined
in Section 897(c)(1) of the Code and the regulations thereunder
with respect to the beneficial owner of such Note (see "United
States Taxation-Non-United States Holders United States Foreign
Investment in Real Property Tax Act"); or
(j) any combination of items (a), (b), (c), (d), (e), (f),
(g), (h) and (i). (Section 2.2)
For purposes of this Prospectus, "United States" means the
United States of America (including the States and the District
of Columbia), its territories, its possessions and other areas
subject to its jurisdiction. A "U.S. person" is a person that
is, for United States federal income tax purposes, (a) a citizen
or resident of the United States, (b) a corporation, partnership
or other entity created or organized in or under the laws of the
United States, or of any political subdivision thereof or (c) an
estate or trust the income of which is subject to United States
federal income taxation regardless of source. Solely for
purposes of the foregoing definition of "U.S. person", the term
"United States" shall include, when used in the geographical
sense, only the States thereof and the District of Columbia.
(Section 2.2)
Notwithstanding the foregoing, if and so long as a
certification, identification or other information reporting
requirement referred to in the second paragraph under "-Redemption-Redemption
for Taxation Reasons" above would be fully
satisfied by payment of a backup withholding tax or similar
charge, the Company may elect, by so stating in the Determination
Notice, to have the provisions of this paragraph apply in lieu of
redeeming the Bearer Notes pursuant to such second paragraph. In
such event, the Company will pay as additional amounts such
amounts as may be necessary so that every net payment made,
following the effective date of such requirements, outside the
United States by the Company or any Paying Agent of principal of,
and premium, if any, due in respect of any Bearer Note, or
interest represented by any coupon, the beneficial owner of which
is not a U.S. person (but without any requirement that the
nationality, residence or identity of such beneficial owner be
disclosed to the Company, any Paying Agent or any governmental
authority), after deduction or withholding for or on account of
such backup withholding tax or similar charge, other than a
backup withholding tax or similar charge which is (a) the result
of a certification, identification or information reporting
requirement described in the first parenthetical clause of the
first sentence of such second paragraph, (b) imposed as a result
of the fact that the Company or any Paying Agent has actual
knowledge that the beneficial owner of such Bearer Note or coupon
is within the category of persons described in clause (a) of the
first paragraph under this heading or (c) imposed as a result of
presentation of such Bearer Note or coupon for payment more than
15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for,
whichever occurs later, will not be less than the amount provided
for in such Bearer Note or coupon to be then due and payable.
(Section 2.2)
Repurchase at Option of Holders Upon a Change in Control
If a Change in Control (as defined below) occurs, each
Holder of Notes shall have the right, at the Holder's option, to
require the Company to repurchase all of such Holder's Notes, or
any portion of the principal amount thereof that is equal to
$5,000 or an integral multiple of $1,000 in excess thereof, on
the date (the "Repurchase Date") that is 45 days after the date
of the Company Notice (as defined below), at a price equal to
100% of the principal amount of the Notes to be repurchased (the
"Repurchase Price"), together with interest accrued to the
Repurchase Date. A Holder of Bearer Notes may exercise the
repurchase option only by delivery of the Notes to an office of a
Paying Agent outside the United States. (Sections 2.2 and 14.1)
The Company may, at its option, in lieu of paying the
Repurchase Price in cash, pay the Repurchase Price in common
stock valued at 95% of the average of the closing prices per
share of the common stock for the five consecutive Trading Days
ending on and including the third Trading Day preceding the
Repurchase Date; provided, that payment may not be made in common
stock unless such stock is listed on a national securities
exchange or traded on the Nasdaq National Market at the time of
payment. (Sections 2.2 and 14.1)
On or before the 30th day after the occurrence of a Change
in Control, the Company will give to all Holders of the Notes
notice, as provided in the Indenture (the "Company Notice"), of
the occurrence of such Change in Control and of the repurchase
right arising as a result thereof. The Company Notice shall be
given in accordance with "-Notices" below. To exercise the
repurchase right, a Holder of Notes must deliver to the Trustee
or any Paying Agent on or before the 30th day after the date of
the Company Notice irrevocable written notice of the Holder's
exercise of such right, together with the Notes and, in the case
of Bearer Notes, any coupons maturing after the repurchase date,
with respect to which the right is being exercised. At least two
Trading Days prior to the Repurchase Date, the Company must
publish a notice in the manner described above specifying whether
the Company will pay the Repurchase Price in cash or in common
stock. (Section 14.2)
A "Change in Control" shall be deemed to have occurred at
such time, after the original issuance of the Notes, of:
(i) the acquisition by any Person of beneficial ownership,
directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions, of shares of
capital stock of the Company entitling such Person to exercise
50% or more of the total voting power of all shares of capital
stock of the Company entitled to vote generally in elections of
directors (any shares of voting stock of which such Person is the
beneficial owner, as defined below, that are not then outstanding
being deemed outstanding for purposes of calculating such
percentage); or
(ii) any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another person into
the Company, or any sale or transfer of all or substantially all
of the assets of the Company to another Person (other than a
merger (x) which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of
capital stock of the Company or (y) which is effected solely to
change the jurisdiction of incorporation of the Company and
results in a reclassification, conversion or exchange of
outstanding shares of Common Stock into solely shares of common
stock);
provided, however, that a Change in Control shall not be deemed
to have occurred if either (a) the closing price per share of the
Common Stock for any five Trading Days within the period of 10
consecutive Trading Days ending immediately after the later of
the Change in Control or the public announcement of the Change in
Control (in the case of a Change in Control under clause (i)
above) or the 10 consecutive Trading Days ending immediately
prior to the date of the Change in Control (in the case of a
Change in Control under clause (ii) above) shall equal or exceed
105% of the conversion price of the Notes in effect on each such
Trading Day, or (b) all the consideration (excluding cash
payments for fractional shares) to be paid for the Common Stock
in the transaction or transactions constituting the Change in
Control consists of shares of common stock traded on a national
securities exchange or quoted on the Nasdaq National Market and
as a result of such transaction or transactions the Notes become
convertible solely into such common stock. "Beneficial owner"
shall be determined in accordance with Rule 13d-3 promulgated by
the Commission under the Exchange Act, and the term "Person"
shall include any syndicate or group deemed to be a "person"
under Section 13(d)(3) of the Exchange Act. (Section 14.3)
A Change in Control would constitute an event of default
under the Company's revolving credit agreement. As a result, any
repurchase in connection therewith would, absent a waiver, be
blocked by the subordination provisions of the Notes. See "-Subordination".
Failure by the Company to repurchase the Notes
when required would result in an Event of Default with respect to
the Notes whether or not such repurchase is permitted by the
subordination provisions. See "-Events of Default".
The foregoing provisions would not necessarily afford
Holders of the Notes protection in the event of highly leveraged
or other transactions involving the Company that may adversely
affect Holders.
Mergers and Sales of Assets by the Company
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease all its properties and
assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or merge
into the Company or convey, transfer or lease all or
substantially all of its properties and assets to the Company
unless (a) in the case the Company shall consolidate with or
merge into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
the Person formed by such consolidation or into which the Company
is merged or the Person to which the properties and assets of the
Company are so conveyed, transferred or leased shall be a
corporation, partnership or trust organized and validly existing
under the laws of the United States, any State thereof or the
District of Columbia and shall expressly assume the payment of
the principal of, premium, if any, and interest on the Notes and
coupons and the performance or observance of every other covenant
of the Company under the Indenture, (b) immediately after giving
effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing, and (c)
the Company has delivered to the Trustee an officer's certificate
and an opinion of counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and supplemental indenture
(if required) comply with, among other things, the requirements
set forth in this paragraph. (Section 7.1)
Events of Default
The following will be Events of Default under the Indenture:
(a) failure to pay principal of or premium, if any, on any Note
at its maturity, whether or not such payment is prohibited by the
subordination provisions of the Indenture; (b) failure to pay any
interest on any Note or coupon when due, continuing for 30 days,
whether or not such payment is prohibited by the subordination
provisions of the Indenture; (c) failure to perform, or the
breach of, any covenant or warranty of the Company in the
Indenture, continuing for 60 days after written notice to the
Company by the Trustee as provided in the Indenture; (d) failure
to pay when due the principal of, or acceleration of, any
indebtedness for money borrowed by the Company in excess of
$10,000,000 if such indebtedness is not discharged, or such
acceleration is not annulled, within 30 days after written notice
as provided in the Indenture; and (e) certain events of
bankruptcy, insolvency or reorganization. (Section 5.1) Subject
to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be
continuing, 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, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 6.3)
Subject to such provisions for the indemnification of the
Trustee, the Holders of a majority in aggregate principal amount
of the Outstanding Notes will have the right 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. (Section 5.12)
If an Event of Default shall occur and be continuing, either
the Trustee or the Holders of at least 25% in principal amount of
the Outstanding Notes may accelerate the maturity of all Notes;
provided, however, that after such acceleration, but before a
judgment or decree based on acceleration, the Holders of a
majority in aggregate principal amount of Outstanding Notes may,
under certain circumstances, rescind and annul such acceleration
if all Events of Default, other than the nonpayment of
accelerated principal, have been cured or waived as provided in
the Indenture. (Section 5.2) For information as to waiver of
defaults, see "-Meetings, Modification and Waiver".
No Holder of any Note or coupon shall have any right to
institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless such Holder shall have previously given
to the Trustee written notice of a continuing Event of Default
and unless also the Holders of not less than 25% in principal
amount of the Outstanding Notes shall have made written request,
and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have
received from the Holders of a majority in principal amount of
the Outstanding Notes a direction inconsistent with such request
and shall have failed to institute such proceeding within 60
days. (Section 5.7) However, such limitations do not apply to a
suit instituted by a Holder of a Note or coupon for the
enforcement of payment of the principal of, premium, if any, or
interest on such Note or such coupon on or after the respective
Stated Maturities expressed in such Note or coupon or of the
right to convert such Note in accordance with the Indenture.
(Section 5.8)
The Company will be required to furnish to the Trustee
annually a statement as to the performance by the Company of
certain of its obligations under the Indenture and as to any
default in such performance. (Section 10.9)
Meetings, Modification and Waiver
The Indenture contains provisions for convening meetings of
the Holders of Notes to consider matters affecting their
interests. (Article Nine)
Modifications and amendments of the Indenture may be made,
and certain past defaults by the Company may be waived, either
(i) with the written consent of the Holders of not less than a
majority in aggregate principal amount of the Notes at the time
Outstanding or (ii) by the adoption of a Resolution, at a meeting
of Holders of the Notes at which a quorum is present, by the
Holders of at least 66 2/3% in aggregate principal amount of the
Outstanding Notes represented at such meeting or by a majority in
aggregate principal amount of the Notes at the time Outstanding.
However, no such modification or amendment may, without the
consent of the Holder of each Outstanding Note or coupon affected
thereby, (a) change the Stated Maturity of the principal of, or
any installment of interest on, any Note or coupon, (b) reduce
the principal amount or the rate of interest payable on any Note
or coupon, (c) reduce the amount payable upon redemption or
repurchase, (d) modify the provisions with respect to the
repurchase right of the Holders in a manner adverse to the
Holders, (e) change the obligation of the Company to pay
additional amounts described above under "-Payment of Additional
Amounts", (f) change the coin or currency for payment of
principal of, premium, if any, interest on, or any other amount
payable on, any Note or coupon, (g) impair the right to institute
suit for the enforcement of any payment in respect of any Note or
coupon on or after the Stated Maturity thereof (or, in the case
of redemption or any repurchase after the Redemption Date or
Repurchase Date, as the case may be), (h) modify the obligation
of the Company to maintain an office or agency in New York City
and in a Western European city, (i) modify the subordination
provisions in a manner adverse to the Holders of the Notes, (j)
reduce the above-stated percentage of Outstanding Notes necessary
to modify or amend the Indenture, (k) reduce the percentage of
aggregate principal amount of Outstanding Notes necessary for
waiver of compliance with certain provisions of the Indenture or
for waiver of certain defaults, (l) reduce the percentage in
aggregate principal amount of Notes Outstanding required for the
adoption of a resolution or the quorum required at any meeting of
Holders of Notes at which a resolution is adopted, (m) adversely
affect the right to convert any Note except as permitted as
described under "-Conversion Rights", (n) modify the obligation
of the Company to deliver information required under Rule 144A to
permit resales of Notes and Common Stock issuable upon conversion
thereof in the event the Company ceases to be subject to certain
reporting requirements under the United States securities laws,
(o) modify the provisions described under "-Repurchase at Option
of Holders Upon a Change in Control" in a manner adverse to the
Holders or (p) modify certain of the Company's obligations under
the Registration Rights Agreement (as defined under "Description
of Registration Rights Agreement") or its obligation to pay
additional interest upon any failure to comply with such
obligations. (Sections 5.13, 8.2, 9.4, 10.10, 10.11, 10.12 and
10.13) The quorum at any meeting called to adopt a resolution
will be persons holding or representing a majority in aggregate
principal amount of the Notes at the time Outstanding and, at any
reconvened meeting adjourned for lack of a quorum, 25% of such
aggregate principal amount. (Section 9.4)
The Holders of a majority in aggregate principal amount of
the Outstanding Notes may waive compliance by the Company with
certain restrictive provisions of the Indenture. (Section 10.13)
The Holders of (i) 66 2/3% in aggregate principal amount of the
Outstanding Securities represented at a meeting of Holders of
Outstanding Securities at which a quorum is present or (ii) a
majority in aggregate principal amount of the Outstanding Notes
may waive any past default under the Indenture, except a default
in the payment of principal, premium, if any, or interest or a
default with respect to a covenant or condition that may only be
modified or amended with the consent of each Holder. (Section
5.13)
Registration Rights
If the Company fails to comply with certain of its
obligations under the Registration Rights Agreement (as defined
under "Description of Registration Rights Agreement"), additional
interest is payable on the Registered Notes as described under
"Description of Registration Rights Agreement-Additional
Interest". (Section 10.12)
Transfer and Exchange
At the option of the Holder upon written request, and
subject to the terms of the Indenture, Bearer Notes (with all
unmatured coupons, except as provided below) are exchangeable for
Registered Notes, of any authorized denomination and of like
aggregate principal amount, and Registered Notes are exchangeable
for Registered Notes of any authorized denomination and of like
aggregate principal amount. See "-Form and Denomination".
Bearer Notes surrendered in exchange for Registered Notes between
a Regular Record Date and the next succeeding Interest Payment
Date or between a Special Record Date before the related date for
payment of Defaulted Interest shall be surrendered without the
coupons relating to such Interest Payment Date or proposed date
of payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such
Interest Payment Date or such related date for payment of
Defaulted Interest, as the case may be, in respect of the
Registered Note issued in exchange for such Bearer Note, but will
be payable only to the Holder of such coupon when due in
accordance with the provisions of the Indenture. Registered
Notes may not be exchanged for Bearer Notes. (Section 3.5)
Bearer Notes may be presented for exchange at the office of
any transfer agent outside the United States. Registered Notes
may be presented for registration of transfer (with the form of
transfer endorsed thereon duly executed) or exchange, at any
office maintained by the Company for such purpose, without
service charge but, in the case of a transfer, upon payment of
any taxes and other governmental charges as described in the
Indenture. Every Registered Note presented or surrendered for
registration or transfer or for exchange (if so required by the
Company or the Security Registrar) shall be duly endorsed, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized
in writing. Registered Notes may be transferred in whole or in
part in authorized denominations. Upon a registration of
transfer, the Company will execute, and the Trustee will
authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Notes of
any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required by
the Indenture. Upon an exchange, the Company will execute, and
the Trustee will authenticate and deliver, the Registered Notes
which the holder making the exchange is entitled to receive.
(Section 3.5)
The Company has initially appointed the Trustee as security
registrar and transfer agent, acting through its Corporate Trust
Office in The City of New York, and has appointed Bankers Trust
Company acting through its London, England office as transfer
agent. The Company reserves the right to vary or terminate the
appointment of the security registrar or of any transfer agent or
to appoint additional or other transfer agents or to approve any
change in the office through which any security registrar or any
transfer agent acts, provided that there will at all times be a
security registrar in and a transfer agent in a Western European
city. (Sections 1.1, 3.5 and 10.2)
In the event of a redemption of less than all of the Notes
(other than a redemption of Bearer Notes for the reasons
described in the Second Paragraph under "-Redemption-Redemption
for Taxation Reasons"), the Company will not be required (a) to
register the transfer or exchange of Registered Notes or to
exchange Bearer Notes for Registered Notes for a period of 15
days immediately preceding the date notice is given identifying
the serial numbers of the Notes called for such redemption, (b)
to register the transfer or exchange of any Registered Note, or
portion thereof, called for redemption, or (c) to exchange any
Bearer Note called for redemption; provided, however, that a
Bearer Note called for redemption may be exchanged for a
Registered Note which is simultaneously surrendered to the
registrar or transfer agent making such exchange with written
instructions for conversion consistent with the provisions
described under "-Conversion Rights" and "-Payment and
Conversion" above. (Section 3.5)
Purchase and Cancellation
The Company or any subsidiary may at any time and from time
to time purchase Notes at any price in the open market or
otherwise.
All Securities and coupons surrendered for payment,
redemption, repurchase, registration of transfer or exchange or
conversion shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Bearer Securities and
coupons so surrendered shall be immediately canceled by such
Person upon receipt prior to being forwarded to the Trustee. All
Registered Securities so delivered to the Trustee shall be
canceled promptly by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities
canceled as provided in the Indenture. (Section 3.9)
Title
Title to the Bearer Notes and the coupons will pass by
delivery. The Company, the Trustee, any Paying Agent and any
other agent of the Company or the Trustee may treat the bearer of
any Bearer Note or any coupon as the absolute owner thereof for
the purpose or receiving payment thereof and for all other
purposes whatsoever (whether or not such Note or coupon shall be
overdue). Prior to due presentment of a Registered Note for
registration of transfer, the Company, the Trustee, the Paying
Agent and any other agent of the Company or the Trustee may treat
the Person in whose name such Registered Note is registered as
the owner thereof for the purpose of receiving payment thereof
and for all other purposes whatsoever. (Section 3.8)
Notices
Notice to Holders of the Notes will be given by publication
in Authorized Newspapers in London or, if publication in London
is not practical, elsewhere in Western Europe. Notices to
Holders of Registered Notes will also be given by mail to the
addresses of such Holders as they appear in the Security
Register. Such notices will be deemed to have been given when
mailed. (Section 1.6)
Notice of a redemption of Notes (other than a redemption
described in the second paragraph under "-Redemption Redemption
for Taxation Reasons") will be given at least once not less than
30 nor more than 60 days prior to the redemption date (which
notice shall be irrevocable except as otherwise provided in the
second paragraph under "-Redemption Redemption for Taxation
Reasons") and will specify the redemption date. (Section 11.5)
Replacement of Notes and Coupons
Notes (including any coupons appertaining to Bearer Notes)
that become mutilated, destroyed, stolen or lost will be replaced
by the Company at the expense of the Holder upon delivery to the
Trustee or to a transfer agent outside the United States of the
mutilated Notes and coupons or evidence of the loss, theft or
destruction thereof satisfactory to the Company and the Trustee
or a Transfer Agent. In the case of a lost, stolen or destroyed
Note or coupon, indemnity satisfactory to the Trustee and the
Company may be required at the expense of the Holder of such Note
or coupon before a replacement Note (with the relevant coupons
appertaining thereto, if any) or coupon will be issued. (Section
3.6)
Payment of Stamp and Other Taxes
The Company shall pay all stamp and other duties, if any,
which may be imposed by the United States or the United Kingdom
or any political subdivision thereof or taxing authority thereof
or therein with respect to the issuance, transfer, exchange or
conversion of the Notes or any coupon. (Section 10.7) Except as
described under "-Payment of Additional Amounts", the Company
will not be required to make any payment with respect to any
other tax, assessment or governmental charge imposed by any
government or any political subdivision thereof or taxing
authority therein. (Section 2.2)
Governing Law
The Indenture, the Notes and the coupons will be governed by
and construed in accordance with the laws of the State of New
York, United States of America. (Section 1.12)
The Trustee
In case an Event of Default shall occur (and shall not be
cured), the Trustee will be required to use the degree of care of
a prudent person in the conduct of his own affairs in the
exercise of its powers. 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 of any of the Holders
of Notes, unless they shall have offered to the Trustee
reasonable security or indemnity. (Sections 6.1 and 6.3)
DESCRIPTION OF REGISTRATION RIGHTS AGREEMENT
The following summary of certain provisions of the
Registration Rights Agreement (as defined below) does not purport
to be complete and is subject to, and qualified in its entirety
by reference to, all the provisions of the Registration Rights
Agreement. The Registration Rights Agreement is filed (through
incorporation by reference) as an exhibit to the Registration
Statement of which this Prospectus forms a part.
Registration Statement
The Company has filed the Registration Statement of which
this Prospectus forms a part pursuant to a Registration Rights
Agreement dated June 5, 1996 (the "Registration Rights
Agreement"), among the Company and Goldman Sachs & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Alex Brown & Sons
Incorporated, CS First Boston Corporation, Prudential Securities
Incorporated and Robertson Stephens & Company, LLC (the
"Underwriters"). The Registration Rights Agreement required the
Company to file a Registration Statement (the "Shelf Registration
Statement") covering resale of the Registrable Securities (as
defined below)with the Commission within 90 days following June
5, 1996 and to use its reasonable best efforts to have the Shelf
Registration Statement declared effective within 90 days after
such filing. Subject to the following paragraph, the Shelf
Registration Statement is required to cover the resale of the
following securities (collectively, the "Registrable
Securities"): (i) all of the Notes (other than any Notes that are
in bearer form or that were converted from bearer to registered
form after August 29, 1996) and (ii) all shares of Common Stock
that may be acquired by any Selling Security Holder upon
conversion of any Note that is required to be covered by the
Shelf Registration Statement as described in the preceding
clause. The Company is obligated to keep the Shelf Registration
Statement effective until the earliest of (i) the expiration of
three years from the time the Shelf Registration Statement was
declared effective (the "effective time"), (ii) such time as all
Registrable Securities have been sold pursuant to the Shelf
Registration Statement, transferred pursuant to Rule 144 under
the Securities Act or otherwise transferred in a manner that
results in a new security not subject to transfer restrictions
under the Securities Act being delivered pursuant to the
Indenture and (iii) such time as, in the opinion of counsel, all
of the Registrable Securities held by non-affiliates of the
Company are eligible for resale pursuant to Rule 144(k) under the
Securities Act and the legends relating to transferability that
pursuant to the Indenture are required to appear on the face of
each Restricted Security (as defined in the Indenture) have been
removed from such Registrable Securities.
The Company is only required to include in the Shelf
Registration Statement the Registrable Securities that are (i)
held by Holders who delivered to the Company a Selling
Securityholder's Questionnaire (substantially in the form
included in the Registration Rights Agreement) on or prior to
August 29, 1996 (each such Holder, an "Electing Holder") and (ii)
to the extent provided in the following sentence, held by Holders
that acquire Registrable Securities from an Electing Holder. Any
Holder that acquires any Registrable Securities from an Electing
Holder (excluding any Registrable Securities that were not
identified in the Selling Securityholder's Questionnaire
delivered by such Electing Holder) will be entitled to have such
Registrable Securities included in the Shelf Registration
Statement, provided that such transferee furnishes the Company
with an updated Selling Securityholder's Questionnaire. The
Registrable Securities covered by such updated Selling
Securityholder's Questionnaire will be included in the Shelf
Registration Statement reasonably promptly after receipt thereof
(which date of inclusion may be subsequent to the effective
time).
Additional Interest
In the event that, during the period that the Company is
required to maintain the effectiveness of the Shelf Registration
Statement, the Shelf Registration Statement ceases to be
effective (or the Holders are otherwise prevented or restricted
by the Company from effecting sales pursuant thereto) for more
than 60 days, whether or not consecutive, during any 12-month
period (an "Effectiveness Failure"), then the interest rate borne
by Registered Notes will increase by an additional one-half of
one percent (0.50%) per annum from the 61st day of the applicable
12-month period such Shelf Registration Statement ceases to be
effective (or the Holders are otherwise prevented or restricted
by the Company from effecting sales pursuant thereto) until such
time as the Effectiveness Failure is cured. For the purpose of
determining an Effectiveness Failure, days on which the Company
has been obligated to pay additional interest in accordance with
the foregoing in respect of a prior Effectiveness Failure within
the applicable 12-month period will not be included.
Underwritten Offering
The Registration Rights Agreement provides that holders of
33 1/3% of the Registrable Securities may elect to have one
underwritten offering. The managing underwriter(s) for any such
offering must be selected by Holders of 50% of the Registrable
Securities to be included in the underwritten offering and must
be reasonably acceptable to the Company. The Company has the
right to defer any underwritten offering for up to 120 days for a
valid business reason.
Fees and Expenses
The Company is required to pay all fees and expenses
incident to the filing of the Shelf Registration Statement and
maintaining its effectiveness for resales of Registrable
Securities. In addition, the Company is required to pay up to a
maximum of $80,000 for the fees and disbursements of a single
counsel selected by Holders of not less than 25% of the
Registrable Securities to represent them in connection with the
Shelf Registration Statement. Except as provided in the
preceding sentence, the Holders of Registrable Securities
included in the Shelf Registration Statement will be responsible
(on a pro rata basis based on the principal amount of Registrable
Securities included therein) for the fees and disbursements of
such counsel.
In the case of an underwritten offering, the Company will
pay up to a maximum of $200,000 for the fees and expenses in
connection therewith (the fees and disbursements of one counsel
for the holders participating in such offering being included in
such fees and expenses). The Holders participating in such
offering will be responsible (on a pro rata basis based on the
principal amount of Registrable Securities included in such
offering) for all fees and expenses of such underwritten offering
in excess of $200,000, including any fees and expenses of counsel
to the Holders, counsel to the Company and the Company's
independent public accountants that may constitute part of such
excess amount.
In no event will the Company be responsible for underwriting
discounts or commissions.
Indemnification
In the Registration Rights Agreement, the Company has agreed
to indemnify the Holders of Registrable Securities against
certain liabilities, including liabilities under the Securities
Act, and each Holder of Registrable Securities included in the
Shelf Registration Statement is obligated to indemnify the
Company and any other Holder against any liability with respect
to any information furnished by such Holder in writing to the
Company (including, without limitation, in a Selling
Securityholder's Questionnaire) expressly for use in the Shelf
Registration Statement.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of
75,000,000 shares of common stock, par value $.001 per share
("Common Stock"), and 5,000,000 shares of preferred stock, par
value $.001 per share ("Preferred Stock"). As of November 12,
1996, there were 37,329,979 shares of Common Stock outstanding
and no shares of Preferred Stock outstanding.
Common Stock
The following is a summary of the rights and privileges of
the holders of Common Stock. These rights and privileges are
subject to the rights and privileges of the holders of Preferred
Stock, if any, which may hereafter be issued:
Dividend Rights. Subject to the preferential rights of the
holders of shares of Preferred Stock, holders of Common Stock are
entitled to share ratably in such dividends, if any, as may be
declared from time to time by the Board of Directors out of funds
legally available therefor.
Voting Rights. Holders of Common Stock are entitled to one
vote per share on all matters submitted to a vote of the
Company's stockholders. The Common Stock does not have
cumulative voting rights, which means that (subject to the rights
of the holders of Preferred Stock) the holders of a plurality of
the shares voting for election of directors can elect all members
of the Board of Directors.
Liquidation Rights. Upon liquidation, dissolution or
winding up of the Company, holders of Common Stock will be
entitled to share ratably in the assets of the Company legally
available for distribution to stockholders after payment of
liabilities and subject to the prior rights of any holders of
Preferred Stock then outstanding.
Other Rights. Holders of Common Stock have no conversion,
sinking fund, redemption, preemptive or subscription rights.
Preferred Stock
The Board of Directors is authorized by the Certificate of
Incorporation of the Company, without first obtaining the
approval of the holders of Common Stock, to issue from time to
time the Preferred Stock in series, to establish as to each
series the designation and number of shares to be issued and the
rights, preferences, privileges and restrictions of the shares of
such series, and to determine the voting powers, if any, of such
shares. Thus, any series may, if so determined by the Board of
Directors, have full voting rights with the Common Stock or
superior or limited voting rights, be convertible into Common
Stock or another security of the Company, and have such other
preferences, relative rights and limitations as the Company's
Board of Directors shall determine. As a result, any series of
Preferred Stock could have rights which would adversely affect
the voting power of the Common Stock or which could delay, defer
or prevent a change in control of the Company. The shares of any
class or series of Preferred Stock need not be identical. There
are currently no shares of Preferred Stock outstanding.
Other Provisions of the Certificate of Incorporation
The Certificate of Incorporation provides that the liability
of the directors of the Company shall be limited to the fullest
extent permitted by the General Corporation Law of the State of
Delaware.
The Certificate of Incorporation permits special meetings of
stockholders to be called only by stockholders holding in the
aggregate not less than 40% of the total shares of stock entitled
to vote for directors.
UNITED STATES TAXATION
The following is a summary of certain United States federal
income and estate tax considerations relating to the purchase,
ownership and disposition of the Notes and of Common Stock into
which Notes may be converted, but does not purport to be a
complete analysis of all the potential tax considerations
relating thereto. This summary is based on laws, regulations,
rulings and decisions now in effect (or, in the case of certain
United States Treasury Regulations ("Treasury Regulations"), now
in proposed form), all of which are subject to change. This
summary deals only with holders that will hold Notes and Common
Stock into which Notes may be converted as "capital assets"
(within the meaning of Section 1221 of the Internal Revenue Code
of 1986, as amended (the "Code")) and does not address tax
considerations applicable to investors that may be subject to
special tax rules, such as banks, tax-exempt organizations,
insurance companies, dealers in securities or currencies, persons
that will hold Notes as a position in a hedging transaction,
"straddle" or "conversion" transaction for tax purposes, or
persons that have a "functional currency" other than the U.S.
dollar. INVESTORS CONSIDERING THE PURCHASE OF NOTES SHOULD
CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE APPLICATION OF
THE UNITED STATES FEDERAL INCOME AND ESTATE TAX LAWS TO THEIR
PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES ARISING
UNDER THE LAWS OF ANY STATE, LOCAL OR FOREIGN TAXING JURISDICTION
OR UNDER ANY APPLICABLE TAX TREATY.
United States Holders
As used herein, the term "United States Holder" means the
beneficial owner of a Note or Common Stock that for United States
federal income tax purposes is (i) a citizen or resident of the
United States, (ii) treated as a domestic corporation or domestic
partnership, or (iii) an estate or trust other than a "foreign
estate" or "foreign trust" as defined in Section 7701 (a) (31) of
the Code. For purposes of the following, it is assumed that a
United States Holder will own only Registered Notes. Generally,
a United States Holder who owns Bearer Notes will not be entitled
to deduct any loss sustained on the sale, exchange, or redemption
of a Bearer Note, and any gain to such a Holder on the sale,
exchange, or redemption of a Bearer Note will be treated as
ordinary income as opposed to capital gain.
Payment of Interest
Interest on a Note generally will be includible in the
income of a United States Holder as ordinary income at the time
such interest is received or accrued, in accordance with such
Holder's method of accounting for United States federal income
tax purposes.
Sale, Exchange or Redemption of the Notes
Except as discussed below under "-Market Discount", upon the
sale, exchange or redemption of a Note, a United States Holder
generally will recognize capital gain or loss equal to the
difference between (i) the amount of cash proceeds and the fair
market value of any property received on the sale, exchange or
redemption (except to the extent such amount is attributable to
accrued interest income, which is taxable as ordinary income) and
(ii) such Holder's adjusted tax basis in the Note. A United
States Holder's adjusted tax basis in a Note generally will equal
the cost of the Note to such holder, less any principal payments
received by such holder. Such capital gain or loss will be long
term-capital gain or loss if the United States Holder's holding
period in the Note is more than one year at the time of sale,
exchange or redemption.
Market Discount
Purchasers of Notes may be affected by the market discount
provisions of sections 1276 through 1278 of the Code. Under the
market discount rules, if a Note is purchased at a market
discount (i.e., at a price below its stated redemption price at
maturity) in excess of a statutorily-defined de minimis amount
and the purchaser subsequently recognizes gain upon a disposition
or retirement of the Note, the lesser of (i) the gain recognized
or (ii) the portion of the market discount that accrued on a
ratable basis while such holder held the Note (or, if the
purchaser so elects, on a constant interest rate basis) generally
will be treated as ordinary income at the time of the
disposition. For most purposes, such income would be treated as
interest income to a United States Holder. Moreover, accrued
market discount on a Note may be taxable to an investor to the
extent of appreciation at the time of certain otherwise non-taxable
transactions (e.g., gifts). In addition, unless the
purchaser elects to include market discount in income as it
accrues, a purchaser of a market discount debt instrument may be
required to defer a portion of any otherwise deductible interest
expense on indebtedness incurred or maintained to purchase or
carry such debt instrument until the holder disposes of the debt
instrument in a taxable transaction.
Amortizable Bond Premium
If a United States Holder purchases a Note for a premium
(i.e., for an amount that is greater than the amount--other than
certain stated interest--payable at maturity) that exceeds the
value of the conversion privilege, such Holder will be considered
to have purchased such Note with "amortizable bond premium" equal
in amount to such excess. Such a United States Holder may elect
(in accordance with section 171 of the Code) to amortize such
premium (as an offset to interest income on the Note), using a
constant yield method. The amount of amortizable bond premium
and the term over which it is to be amortized are determined with
reference to the amount payable on maturity or, if it results in
a smaller premium attributable to the period ending on an earlier
redemption date, with reference to the amount payable on the
earlier redemption date. Under regulations recently proposed by
the United States Treasury Department, a United States Holder who
purchases a Note sixty or more days after such regulations are
finalized, would in determining the amortizable amount take into
account the Company's right to call the Notes only if exercise of
the call would increase such United States Holder's yield on the
Note. A Holder who elects to amortize bond premium must reduce
his tax basis in the Note each year by the amount of the premium
amortized in that year. An election to amortize bond premium
applies to all taxable debt obligations then owned and thereafter
acquired by the taxpayer and may be revoked only with the consent
of the Internal Revenue Service with respect to debt instruments
acquired after revocation.
Conversion of the Notes
A United States Holder generally will not recognize any
income, gain or loss upon conversion of a Note into Common Stock
except with respect to cash received in lieu of a fractional
share of Common Stock. Such Holder's tax basis in the Common
Stock received on conversion of a Note will be the same as such
Holder's adjusted tax basis in the Note at the time of conversion
(reduced by any basis allocable to a fractional share interest),
and the holding period for the Common Stock received on
conversion will generally include the holding period of the Note
converted.
Any accrued market discount not previously taken into income
prior to a conversion of a Note would (under rules to be set
forth in Treasury Regulations that have not yet been issued)
carry over to the Common Stock received on conversion and be
treated as ordinary income to the extent of any gain recognized
on a subsequent disposition of the Common Stock.
Cash received in lieu of a fractional share of Common Stock
upon conversion will be treated as a payment in exchange for the
fractional share of Common Stock. Accordingly, the receipt of
cash in lieu of a fractional share of Common Stock generally
will, except to the extent of accrued market discount
attributable to such fractional share, result in capital gain or
loss (measured by the difference between the cash received for
the fractional share and the United States Holder's adjusted tax
basis in the fractional share).
Dividends
Dividends paid on the Common Stock generally will be
includible in the income of a United States Holder as ordinary
income to the extent of the Company's current or accumulated
earnings and profits.
If at any time (i) the Company makes a distribution of cash
or property to its stockholders or purchases Common Stock and
such distribution or purchase would be taxable to such
stockholders as a dividend for United States federal income tax
purposes (e.g., distributions of property would include
distributions of evidences of indebtedness or assets of the
Company, but generally not stock dividends or rights to subscribe
for Common Stock) and, pursuant to the anti-dilution provisions
of the Indenture, the conversion price of the Notes is decreased,
or (ii) the conversion price of the Notes is decreased at the
discretion of the Company, such decrease in conversion price may
be deemed to be the payment of a taxable dividend to Holders of
Notes (pursuant to Section 305 of the Code). Holders of Notes
could therefore have taxable income as a result of an event
pursuant to which they received no cash or property.
Sale of Common Stock
Upon the sale or exchange of Common Stock, a United States
Holder generally will recognize capital gain or loss equal to the
difference between (i) the amount of cash and the fair market
value of any property received upon the sale or exchange and (ii)
such Holder's adjusted tax basis in the Common Stock. Such
capital gain or loss will be long-term if the United States
Holder's holding period in the Common Stock is more than one year
at the time of the sale or exchange. Gain on the sale or
exchange of the Common Stock may, however, be ordinary income to
the extent of any market discount accrued on the Notes at the
time of conversion into Common Stock. A United States Holder's
basis and holding period in and the effect of market discount on
Common Stock received upon conversion of a Note are discussed
above under "-Conversion of the Notes".
Information Reporting and Backup Withholding Tax
In general, information reporting requirements will apply to
payments of principal, premium, if any, and interest on a Note,
payments of dividends on Common Stock, payments of the proceeds
of the sale of a Note and payments of the proceeds of the sale of
Common Stock to certain non-corporate United States Holders, and
a 31% backup withholding tax may apply to such payments if the
United States Holder (i) fails to furnish or certify his correct
taxpayer identification number to the payor in the manner
required, (ii) is notified by the Internal Revenue Service (the
"IRS") that he has failed to report payments of interest and
dividends properly, or (iii) under certain circumstances, fails
to certify that he has not been notified by the IRS that he is
subject to backup withholding for failure to report interest and
dividend payments. Any amounts withheld under the backup
withholding rules from a payment to a United States Holder will
be allowed as a credit against such holder's United States
federal income tax and may entitle the holder to a refund
provided that the required information is furnished to the IRS.
Non-United States Holders
As used herein, the term "Non-United States Holder" means
any beneficial owner of a Note or Common Stock that is not a
United States Holder.
Payment of Interest
Payment of interest on a Note or coupon by the Company or
any Paying Agent to a Non-United States Holder will qualify for
the "portfolio interest exemption" and therefore will not be
subject to United States federal income tax or withholding tax,
provided that such interest income is not effectively connected
with a United States trade or business of the Non-United States
Holder and provided that the Non-United States Holder (i) does
not actually or constructively own 10% or more of the combined
voting power of all classes of stock of the Company entitled to
vote, (ii) is not a controlled foreign corporation related to the
Company actually or constructively through stock ownership,
(iii) is not a bank receiving interest on a loan entered into in
the ordinary course of business, (iv) is not, and does not
receive payments in an account, within a country designated by
the Internal Revenue Service as not qualifying for the portfolio
interest exemption (it being understood that, although the
Internal Revenue Service has not at the current time made such
designation or given any public notice it intends to do so in the
future, it has the statutory authority so to do) and (v) in the
case of a Registered Note, either (a) provides a Form W-8 (or a
suitable substitute form) signed under penalties of perjury that
includes its name and address and certifies as to its non-United
States status in compliance with applicable law and regulations,
or (b) a securities clearing organization, bank or other
financial institution that holds customers' securities in the
ordinary course of its trade or business holds the Note and
provides a statement to the Company or its agent under penalties
of perjury in which it certifies that such a Form W-8 (or a
suitable substitute) has been received by it from the Non-United
States Holder or qualifying intermediary and furnishes the
Company or its agent a copy thereof.
Recently proposed Internal Revenue Service regulations ("the
Proposed Certification Regulations") would provide alternative
methods for satisfying the certification requirement described in
the preceding paragraph. The Proposed Certification Regulations
would also generally require, in the case of Notes held by a
foreign partnership, that (x) the certification described above
be provided by the partners, rather than by the partnership, and
(y) the partnership provide certain information, including a
United States taxpayer identification number. A look-through
rule would apply in the case of tiered partnerships. The
Proposed Certification Regulations are proposed to be effective
for payments made after December 31, 1997. There can be no
assurance that the Proposed Certification Regulations will be
adopted, or as to the provisions that they will include if and
when adopted, in temporary or final form.
Except to the extent that an applicable treaty otherwise
provides, a Non-United States Holder generally will be taxed in
the same manner as a United States Holder with respect to
interest if the interest income is effectively connected with a
United States trade or business of the Non-United States Holder.
Effectively connected interest received by a corporate Non-United
States Holder may also, under certain circumstances, be subject
to an additional "branch profits tax" at a 30% rate (or, if
applicable, a lower treaty rate). Even though such effectively
connected interest is subject to income tax, and may be subject
to the branch profits tax, it is not subject to withholding tax
if the Holder delivers a completed IRS Form 4224 to the payor.
Interest income of a Non-United States Holder that is not
effectively connected with a United States trade or business and
that does not qualify for the portfolio interest exemption
described above will generally be subject to a 30% (or lower
treaty rate) withholding tax.
Sale, Exchange or Redemption of the Notes
A Non-United States Holder of a Note or coupon will
generally not be subject to United States federal income tax or
withholding tax on any gain realized on the sale, exchange or
redemption of the Note or coupon (including the receipt of cash
in lieu of fractional shares upon conversion of a Note in Common
Stock) unless (1) the gain is effectively connected with a United
States trade or business of the Non-United States Holder, (2) in
the case of a Non-United States Holder who is an individual, such
Holder is present in the United States for a period or period
aggregating 183 days or more during the taxable year of the
disposition, and either such Holder has a "tax home" in the
United States or the disposition is attributable to an office or
other fixed place of business maintained by such Holder in the
United States, (3) the Holder is subject to tax pursuant to the
provisions of the Code applicable to certain United States
expatriates, or (4) the Company is a United States real property
holding corporation (see discussion under "-United States Foreign
Investment in Real Property Tax Act" below).
Conversion of the Notes
In general, no United States federal income tax or
withholding tax will be imposed upon the conversion of a Note
into Common Stock by a Non-United States Holder except with
respect to the receipt of cash in lieu of fractional shares by
Non-United States Holders upon conversion of a Note where any of
the conditions described above under "-Non-United States
Holders-Sale, Exchange or Redemption of the Notes" is satisfied.
Sale or Exchange of Common Stock
A Non-United States Holder generally will not be subject to
United States federal income tax or withholding tax on the sale
or exchange of Common Stock unless any of the conditions
described above under "-Non-United States Holders-Sale, Exchange
or Redemption of the Notes" is satisfied.
Dividends
Dividends paid (or deemed paid, as described above under "-United States
Holders-Dividends") on Common Stock to a Non-United
States Holder (excluding dividends that are effectively connected
with the conduct of a trade or business in the United States by
such Holder and are taxable as described below) will be subject
to United States federal withholding tax at a 30% rate (or lower
rate provided under any applicable income tax treaty). Except to
the extent that an applicable tax treaty otherwise provides, a
Non-United States Holder will be taxed in the same manner as a
United States Holder on dividends paid (or deemed paid) that are
effectively connected with the conduct of a trade or business in
the United States by the Non-United States Holder.
If such Non-United states Holder is a foreign corporation, it may also be
subject to a United States branch profits tax at a 30% rate or
such lower rate as may be specified by an applicable income tax
treaty. Even though such effectively connected dividends are
subject to income tax, and may be subject to the branch profits
tax, they will not be subject to U.S. withholding tax if the
Holder delivers a completed IRS Form 4224 to the payor.
Under current United States Treasury Regulations, dividends
paid to an address in a foreign country are presumed to be paid
to a resident of that country (unless the payor has knowledge to
the contrary) for purposes of the withholding tax discussed above
and, under the current interpretation of United States Treasury
Regulations, for purposes of determining the applicability of a
tax treaty rate. Under the Proposed Certification Regulations
described under "-Non-United States Holders-Payment of Interest",
however, a Non-United States Holder of Common Stock who wished to
claim the benefit of an applicable treaty rate would be required
to satisfy applicable certification requirements. In addition,
under the Proposed Certification Regulations, the certification
and information reporting requirements described above in the
second paragraph under "-Non-United States Holders-Payment of
Interest" would apply with respect to dividends paid on Common
Stock held by a foreign partnership.
Death of a Non-United States Holder
A Note or coupon held by an individual who is not a citizen
or resident of the United States at the time of death will not be
includible in the decedent's gross estate for United States
estate tax purposes, provided that such holder or beneficial
owner did not at the time of death actually or constructively own
10% or more of the combined voting power of all classes of stock
of the Company entitled to vote, and provided that at the time of
death payments with respect to such Note or coupon would not have
been effectively connected with the conduct by such Non-United
States Holder of a trade or business within the United States.
Common Stock actually or beneficially held by a Non-United
States Holder at the time of his or her death (or previously
transferred subject to certain retained rights or powers) will be
subject to United States federal estate tax unless otherwise
provided by an applicable estate tax treaty.
Information Reporting and Backup Withholding Tax
Under current law, United States information reporting
requirements and backup withholding tax will not apply to
(i) payments on a Bearer Note or coupon made outside the United
States (other than payments made to an address in the United
States or by transfer to an account maintained by the holder with
a bank in the United States) by the Company or by any Paying
Agent (acting in its capacity as such) to a Non-United States
Holder or (ii) payments on a Registered Note to a Non-United
states Holder if the Form W-8 or similar statement described in
"-Non-United States Holders-Payment of Interest" is duly provided
by such Holder, provided that the payor does not have actual
knowledge that the holder is a United States person. If and when
the Proposed Certification Regulations described under "-Non-United States
Holders-Payment of Interest" become effective,
alternative certification requirements (and, possibly,
partner-level certification requirements in the case of Holders that are
foreign partnerships) may apply with respect to Registered Notes.
See the discussion above under "-Non-United States Holders-Payment of Interest".
Information reporting and backup withholding tax also will
not apply to any nominee or other agent of the beneficial owner
of such Note or coupon, unless such custodian nominee or agent
(i) is a United States person, (ii) derives 50% or more of its
gross income for certain periods from the conduct of a trade or
business in the United States or (iii) is a controlled foreign
corporation as to the United States. Payment on a Bearer Note or
coupon outside the United States to the beneficial owner thereof
by a foreign office of any custodian, nominee or agent that is
described in (i), (ii) or (iii) of the preceding sentence will
not be subject to backup withholding tax, but will be subject to
information reporting requirements unless such custodian, nominee
or agent has documentary evidence in its records that the
beneficial owner is a Non-United States holder and certain other
conditions are met, or the beneficial owner otherwise establishes
an exemption. Payment on a Note or coupon to the beneficial
owner thereof by a United States office of a custodian, nominee
or agent is subject to information reporting and backup
withholding requirements, unless the beneficial owner of the Note
or coupon provides the Form W-8 or suitable substitute statement
described under "-Non-United States Holders-Payments of Interest"
or the beneficial owner otherwise establishes an exemption.
Information reporting requirements and backup withholding
tax will not apply to any payment of the proceeds of the sale of
a Registered or Bearer Note or coupon or any payment of the
proceeds of the sale of Common Stock effected outside the United
States by a foreign office of a "broker" (as defined in
applicable Treasury Regulations), unless such broker (i) is a
United States person, (ii) derives 50% or more of its gross
income for certain periods from the conduct of a trade or
business in the United States or (iii) is a controlled foreign
corporation as to the United States. Payment of the proceeds of
any such sale effected outside the United States by a foreign
office of any broker that is described in (i), (ii) or (iii) of
the preceding sentence will not be subject to backup withholding
tax, but will be subject to information reporting requirements
unless such broker has documentary evidence in its records that
the beneficial owner is a Non-United States Holder and certain
other conditions are met, or the beneficial owner otherwise
establishes an exemption. Payment of the proceeds of any such
sale to or through the United States office of a broker is
subject to information reporting and backup withholding
requirements, unless the beneficial owner of the Note or coupon
provides the Form W-8 or suitable substitute statement described
under "-Non-United States Holders-Payment of Interest" or
otherwise establishes an exemption.
If paid to an address outside the United States, dividends
on Common Stock held by a Non-United States Holder will not under
current law be subject to the information reporting and backup
withholding requirements discussed in this section, provided that
the payor does not have actual knowledge that the payee is a
United States person. However, under the Proposed Certification
Regulations, dividend payments generally would be subject to
information reporting unless applicable certification
requirements are satisfied. See the discussion above under "-Non-United
States Holders-Payment of Interest" with respect to
these requirements and the additional requirements that would be
applicable to foreign partnerships under the Proposed
Certification Regulations.
The backup withholding and information reporting rules are
currently under review by the Department of the Treasury, and
their application to the Notes, coupons and Common Stock could be
changed prospectively by future regulations.
United States Foreign Investment in Real Property Act
Under the Foreign Investment in Real Property Tax Act
("FIRPTA"), any person who acquires a "United States real
property interest" (as described below) from a foreign person
must deduct and withhold a tax equal to 10% of the amount
realized by the foreign transferor. In addition, a foreign person
who disposes of a United States real property interest generally
is required to recognize gain or loss that is subject to United
States federal income tax. A "United States real property
interest" generally includes any interest (other than an interest
solely as creditor) in a United States corporation unless it is
established under specific procedures that the corporation is not
(and was not at any time during the prior five-year period) a
"United States real property holding corporation". The Company
does not believe that it is a United States real property holding
corporation as of the date hereof, although it has not conducted
or obtained an appraisal of its assets to determine whether it is
now or will be a United States real property holding corporation.
If it is not established that the Company is not a United States
real property holding corporation, then, unless an exemption
applies, both the Common Stock and Notes would be treated as
United States real property interests. As discussed below,
however, an exemption should apply to the Common Stock and the
Notes except with respect to a Non-United States Holder whose
beneficial ownership of Common Stock or the Notes exceeds 5% of
the total fair market value.
An interest in a United States corporation generally will
not be treated as a United States real property interest if, at
any time during the calendar year, any class of stock of the
corporation is "regularly traded" on an established securities
market (the "regularly traded exemption"). The Company believes
that the Company's Common Stock is regularly traded on an
established securities market within the meaning of the
applicable regulations, although there can be no assurance that
the Common Stock will remain regularly traded. The remainder of
this discussion assumes that the Common Stock is and will remain
regularly traded on an established securities market.
The regularly-traded exemption is not available to a
regularly traded interest (such as the Common Stock) if such
interest is owned by a person who beneficially owns (actually or
constructively) more than 5% of the total fair market value of
that class of interests at any time during the five-year period
ending on the date of disposition of such interest or other
applicable determination date. Accordingly, except with respect
to a sale or other disposition of Common Stock by a Non-United
States Holder whose aggregate beneficial ownership has exceeded
that 5% threshold, no withholding or income taxation under the
FIRPTA rules should be required with respect to the sale,
exchange or other disposition of Common Stock by a Non-United
States Holder.
The regularly traded exemption will apply to a "non-regularly traded
class of interests" in a United States
corporation that is convertible into a regularly traded class of
interests in the corporation unless, on the date such non-regularly traded
interest was acquired by its present holder,
such interest had a fair market value greater than the fair
market value on that date of 5% of the regularly traded class of
the corporation's stock into which it is convertible. (Interests
of a non-regularly traded class acquired over a period of time
will be aggregated for purposes of applying the 5% test described
above.) This discussion assumes that the Notes constitute
interests that are non-regularly traded interests convertible
into a regularly traded class of interests. (It is not entirely
certain how the regularly traded exemption will apply if the
Notes become "regularly traded" within the meaning of the FIRPTA
rules. For example, the regularly traded exemption may in that
event not apply to a Non-United States Holder who actually and
constructively owned more than 5% of the Notes even though Notes
owned by such Non-United States Holder represented no more than
5% of the value of the outstanding Common Stock. However, a
transfer of Notes would not be subject to the 10% withholding tax
discussed above if the Notes were regularly traded, regardless of
whether the transferor held more than 5% of the Notes.)
Accordingly, except with respect to the sale, exchange,
conversion or redemption of the Notes by a Non-United States
Holder whose aggregate actual or constructive ownership of such
Notes on an applicable determination date had a fair market value
greater than 5% of the Common Stock, no withholding or income
taxation under the FIRPTA rules should be required with respect
to the sale, exchange, conversion or redemption of Notes by a
Non-United States Holder. A Non-United States Holder who sells
or otherwise disposes of Notes may be required to inform its
transferee whether such Notes constitute a United States real
property interest.
Any investor that may approach or exceed 5% ownership,
either alone or in conjunction with related persons, should
consult its own tax advisor concerning the United States tax
consequences that may result.
SELLING SECURITY HOLDERS
The Notes were originally issued by the Company to the
Underwriters on June 5, 1996, pursuant to an exemption from the
registration requirements of the Securities Act provided by
Section 4(2) thereof. The Notes were sold simultaneously by the
Underwriters in transactions exempt from the registration
requirements of the Securities Act pursuant to Rule 144A,
Regulation D or Regulation S under the Securities Act. An
aggregate of $150,000,000 principal amount of Notes was issued
and was outstanding as of November 13, 1996.
This Prospectus relates to the offer and sale by each
Selling Security Holder of the following securities (the "Resale
Securities"): (i) the Notes that are set forth in the table below
with respect to such Selling Security Holder (as such table may
be amended from time to time by means of a supplement or
amendment hereto) and (ii) all shares of Common Stock that may be
acquired by any Selling Security Holder upon conversion of any
Note to which this Prospectus relates as described in the
preceding clause.
The "Selling Security Holders" include (i) each person and
entity that is identified as a Selling Security Holder in the
table below (as such table may be supplemented or amended from
time to time by means of a supplement or amendment hereto) and
(ii) any transferee, donee, pledgee or other successor of any
such person or entity that acquires any of the Resale Securities
in a transaction exempt from the registration requirements of the
Securities Act and that is identified in a supplement or
amendment hereto.
Based upon information provided to the Company by each
Selling Security Holder, the table below indicates with respect
to each Selling Security Holder: (i) the aggregate principal
amount of Notes beneficially owned by such Selling Security
Holder and (ii) the aggregate number of shares of Common Stock
issuable upon conversion of such Notes (rounded down to the
nearest whole number) based upon the current per share conversion
price. The table below also indicates by footnote reference any
material relationship that a Selling Security Holder has had with
the Company during the preceding three years. This Prospectus
covers all securities shown in the table below.
# of Shares
of Common
Principal Stock
Amount of Issuable Upon
Notes Conversion
Selling Security Holder(1) Owned Of Notes(2)
- -------------------------- ----------- ------------
AIM Advisors $ 1,000,000 30,769 (3)
Austin Firefighters 135,000 4,153
Bancroft Convertible Fund, Inc. 500,000 15,384
Baptist Hospital of Miami 95,000 2,923
Bankers Trust Trustee
for Chrysler Corporation
Emp#1 Pension Plan
dated 4/1/89 570,000 17,538
Bond Fund Series -
Oppenheimer Bond Fund
For Growth 5,000,000 153,846
Boston Museum of Fine Arts 40,000 1,230
CFW-C, L.P. 8,000,000 246,153
Colgate Palmolive 1,200,000 36,923
Chase Manhattan Bank Trustee
for IBM Corporate Retirement
Plan Trust dated 12/18/45 2,430,000 74,769
Christian Science Trustees
for Gifts and Endowments 300,000 9,230
Cincinnati Bell Telephone
Convertible Value Fund 400,000 12,307
Declaration of Trust for
the Defined Benefit Plan
of ICI American Holdings Inc. 850,000 26,153
Declaration of Trust for
the Defined Benefit Plans
of ZENECA Holdings Inc. 550,000 16,923
Delta Airlines Master Trust 3,590,000 110,461
Delaware State Employees'
Retirement Fund 3,000,000 92,307
Delaware State Retirement
Fund-Froley, Revy 610,000 18,769
Dunham & Associates Fund 2 45,000 1,384
Ellsworth Convertible Growth
and Income Fund, Inc. 500,000 15,384
Engineers Joint Pension Fund 175,000 5,384
Equitable Life Seperate
Account - Balanced 240,000 7,384
Equitable Life Seperate
Account - Convertibles 2,095,000 64,461
First Church of Christ,
Scientist-Endowment 400,000 12,307
Fiduciary Trust Company
International 500,000 15,384
Franklin Investors Securities
Trust Convertible Securities
Fund 1,500,000 46,153
General Motors Salaried
Employees Convertible Fund 2,315,000 71,230
Grace Brothers, Ltd. 2,100,000 64,615
Highbridge Capital Corporation 3,500,000 107,692
Hillside Capital Incorporated
Corporate Account 300,000 9,230
Hudson River Growth Investors 710,000 21,846
Hudson River Trust Balanced
Portfolio 1,135,000 34,923
Hudson River Trust Growth &
Income Portfolio 490,000 15,076
ICI American Holdings Pension 255,000 7,846
Kellner DiLeo & Co. 4,300,000 132,307
Kapiolani Medical Center 65,000 2,000
Lincoln National Convertible
Securities Fund 530,000 16,307
Lincoln National Insurance-
Corporate Convertible
Securities Pool 2,065,000 63,538
Massachusetts Mutual Life
Insurance Company 400,000 12,307
Medical Malpractice Insurance
Association 100,000 3,076
Memphis Light, Gas & Water 785,000 24,153
Nalco Chemical Retirement Trust 100,000 3,076
New York Life Insurance Company
Pooled Seperate Account No. 7 1,000,000 30,769
Nicholas-Appelgate Income &
Growth Fund 1,060,000 32,615
Northwestern Mutual Life
Insurance Company 3,000,000 92,307
NB Convertible Arbitrage
Partners, L.P. 4,050,000 124,615
Occidental College 110,000 3,384
OCM Convertible Limited
Partnership 250,000 7,692
OCM Convertible Trust 5,065,000 155,846
Oregon Equity Fund 2,640,000 81,230
Pacific Mutual Life Insurance
Company 500,000 15,384
Presbyterian Healthcare 240,000 7,384
Physicians Life 180,000 5,538
Prim Board 925,000 28,461
SAIF Corporation 1,710,000 52,615
Sage Capital 1,100,000 33,846
San Diego City Retirement 365,000 11,230
San Diego County Convertible 1,270,000 39,076
State Employees' Retirement
Fund of the State of Delaware 1,290,000 39,692
State of Connecticut Combined
Investment Funds 3,255,000 100,153
State of Michigan Employees
Retirement Fund 900,000 27,692
The Common Fund 2,300,000 70,769
The Main Stay Funds-
Convertible Fund 1,000,000 30,769
TCW Convertible Securities
Fund 1,960,000 60,307
TCW Convertible Strategy Fund 600,000 18,461
TCW Convertible Value Fund 1,300,000 40,000
TCW/DW Income & Growth Fund 300,000 12,307
Thermo Electron Balanced
Investment Fund 600,000 18,461
WAFRA Discretionary 140,000 4,307
Wake Forest University 285,000 8,769
Weirton Trust Convertibles 250,000 7,692
Zeneca Holdings Pension 240,000 7,384
Additional Selling Security
Holders that may be identified
in a supplement or
amendment hereto 47,040,000 1,447,384
- ---------------------
(1) Each Selling Security Holder is the beneficial owner of the
indicated Notes. In certain cases, the indicated Notes may be
held of record by a nominee or custodian for the account of the
Selling Security Holder.
(2) The per share conversion price and, therefore, the number of
shares of Common Stock that may be issuable upon conversion of
the Notes is subject to adjustment as described under
"Description of Notes-Conversion Rights".
(3) As of August 29,1996, AIM Advisors was the owner of 1,058,000
outstanding shares of Common Stock. Such shares are not covered
by this Prospectus.
Assuming that the Selling Security Holders dispose of all
securities covered by this Prospectus (and assuming no
additional acquisitions or dispositions of Notes or shares of
Common Stock by such Selling Security Holders), none of the
Selling Security Holders would continue to own any Notes or
shares of Common Stock (except for the shares currently owned by
a Selling Security Holder described in footnote 3 to the table
above).
PLAN OF DISTRIBUTION
The Notes and Common Stock that may be offered by the
Selling Security Holders pursuant to this Prospectus (the "Resale
Securities") may be sold from time to time by the Selling
Security Holders directly to purchasers or, alternatively, may be
offered from time to time through agents, brokers, dealers or
underwriters, who may receive compensation in the form of
concessions or commissions from the Selling Security Holders or
purchasers of the Resale Securities (which compensation may be in
excess of customary commissions). Any agents, brokers, dealers
or underwriters that participate in the distribution of the
Resale Securities may be deemed to be "underwriters" within the
meaning of the Securities Act, and any commissions received by
them and any profit on the resale of any Resale Securities
purchased by them might be deemed to be underwriting discounts or
commissions under the Securities Act.
The Resale Securities may be sold from time to time in one
or more transactions at fixed prices, at prevailing market prices
at the time of sale or at prices related to such market prices,
at varying prices determined at the time of sale or at negotiated
prices. The sale of the Resale Securities may be effected in
transactions (which may involve crosses or block transactions)
(i) on any national securities exchange on which the Resale
Securities may be listed,(ii) in the over-the-counter market,
(iii) in transactions otherwise than on such exchanges or in the
over-the-counter market or (iv) through the writing of options.
Under the Exchange Act and the regulations thereunder, any
person engaged in a distribution of the Resale Securities may not
simultaneously engage in market making activities with respect to
such securities during the applicable "cooling off" periods prior
to the commencement of such distribution. In addition, and
without limiting the foregoing, each Selling Security Holder will
be subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder including, without limitation,
Rules 10b-6 and 10b-7, which provisions may limit the timing of
purchases and sales of Resale Securities by the Selling Security
Holders.
To the extent required, the Company will use its best
efforts to file, during any period in which offers or sales are
being made, one or more supplements to this Prospectus to
describe any material information with respect to the plan of
distribution not previously disclosed in this Prospectus or any
material change to such information in this Prospectus.
In order to comply with the securities laws of certain
jurisdictions, if applicable, the Resale Securities will be
offered or sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain
jurisdictions the Resale Securities may not be offered or sold
unless they have been registered or qualified for sale in such
jurisdictions or any exemption from registration or qualification
is available and is complied with.
See "Description of Registration Rights Agreement" for
certain information concerning the respective obligations of the
Company and the Selling Security Holders (i) to pay certain costs
and expenses related to the Registration Statement of which this
Prospectus forms a part and the offer and sale of the Resale
Securities hereunder and (ii)to provide indemnification against
certain liabilities arising under the Securities Act.
VALIDITY OF SECURITIES
The validity of the securities offered hereby has been
passed upon for the Company by Ehrenreich & Krause, New York, New
York.
EXPERTS
The consolidated financial statements of United Waste
Systems Inc., appearing in the Company's Annual Report (Form 10-K) for the
year ended December 31, 1995, and the supplemental
consolidated financial statements of United Waste Systems, Inc.,
appearing in the Company's Current Report on Form 8-K dated June
28, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their reports thereon included therein
and incorporated herein by reference. Such consolidated and
supplemental consolidated financial statements are incorporated
herein by reference in reliance upon such reports given upon the
authority of such firm as experts in accounting and auditing.
The combined financial statements of the PRM Acquired
Companies appearing in the Company's Form 8-K/A dated September
19, 1995, and incorporated by reference herein have been audited
by Coopers & Lybrand L.L.P., independent accountants as set forth
in their report thereon appearing therein, and are incorporated
by reference herein in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.<PAGE>
Exhibit A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Bankers Trust Company, as Trustee
United Waste Systems, Inc.
c/o Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street
New York, New York 10006
Re: United Waste Systems, Inc. (the "Company") 4 1/2%
Convertible Subordinated Notes due June 1, 2001 (the "Notes")
Dear Sirs:
Please be advised that ___________________________ has
transferred $_________________ aggregate principal amount of the
above-referenced Notes pursuant to an effective Registration
Statement on Form S-3 (File No. 333-11109) filed by the Company.
The undersigned hereby certifies that the prospectus
delivery requirements, if any, of the Securities Act of 1933, as
amended, have been satisfied and that the above-named beneficial
owner of the Notes is named as a "Selling Security Holder" in the
Prospectus dated __________, 1996 or in supplements thereto, and
that the aggregate principal amount of the Notes transferred are
included in the Notes listed in such Prospectus (or supplement
thereto) opposite such owner's name.
Dated:
Very truly yours,
-------------------------
(Name)
By:
-------------------------
Authorized Signature
Name:
---------------------
Title:
--------------------
PART II
Item 14. Other Expenses of Issuance and Distribution
The expenses to be paid by the Registrant in connection with
the distribution of the securities being registered hereunder are
set forth in the table below. All amounts except the registration
fee are estimated. For information concerning certain additional
expenses that the Company and/or the Selling Security Holders may
be required to pay in the event that there is an underwritten
offering of the Resale Securities, see "Description of
Registration Rights Agreement-Fees and Expenses".
Securities and Exchange Commission
registration fee $44,485
Printing expenses 4,000
Blue sky qualification fees and
expenses, including legal fees 5,000
Accounting fees and expenses 7,000
Legal fees and expenses of the Company
(other than related to blue sky)(1) 10,000
Miscellaneous
-------
Total $70,485
-------
-------
- -------------------
(1) In addition, the Company is required under certain
circumstances to pay up to a maximum of $80,000 for the fees and
disbursements of a single counsel selected to represent Holders
of the Offered Securities in connection with this Registration
Statement. See "Description of Registration Rights Agreement-Fees
and Expenses".
Item 15. Indemnification of Directors and Officers.
Pursuant to specific authority granted by Section 102 of the
Delaware General Corporation Law (the "DGCL"), Article X of the
Registrant's Certificate of Incorporation contains the following
provision regarding limitation of liability of directors and
officers:
The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted
by Paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented, or any corresponding provision of the
General Corporation Law of the State of Delaware.
The Registrant, as a Delaware corporation, is empowered by
Section 145 of the DGCL, subject to the procedures and limitation
stated therein, to indemnify any person against expenses
(including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with any threatened, pending or completed action, suit or
proceeding in which such person is made a party by reason of his
being or having been a director, officer, employer or agent of
the Registrant. The statute provides that indemnification
pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors,
or otherwise. Article IX of Registrant's Amended and Restated
Certificate of Incorporation and Article V of Registrant's By-laws both provide
for indemnification of its officers and
directors to the full extent permitted by the DGCL. In addition,
the Company has entered into indemnification agreements with each
of its directors and officers. In general, these agreements
require the Company to indemnify each of such persons against
expenses, judgments, fines, settlements and other liabilities
incurred in connection with any proceeding (including a
derivative action) to which such person may be made a party by
reason of the fact that such person is or was a director, officer
or employee of the Company or guaranteed any obligations of the
Company, provided that the right of an indemnitee to receive
indemnification is subject to the following limitations: (i) an
indemnitee is not entitled to indemnification unless he acted in
good faith and in a manner that he reasonably believed to be in
or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe such conduct was unlawful and (ii) in the case
of a derivative action, an indemnitee is not entitled to
indemnification in the event that he is judged in a final non-appealable
decision of a court of competent jurisdiction to be
liable to the Company due to willful misconduct in the
performance of his duties to the Company (unless and only to the
extent that the court determines that the indemnitee is fairly
and reasonably entitled to indemnification).
Pursuant to Section 145 of the DGCL, Registrant has
purchased insurance on behalf of its present and former directors
and officers against any liability asserted against or incurred
by them in such capacity or arising out of their status as such.
Item 16. Exhibits.
Exhibit Number and Exhibit
- --------------------------
4.1 Amended and Restated Certificate of Incorporation dated
October 31, 1991, as amended by (i) Certificate of Increase of
Designated Number of Shares of Series B Cumulative Convertible
Preferred Stock dated March 31, 1992, (ii) Certificate of
Correction to Amended and Restated Certificate of Incorporation
dated April 30, 1992, (iii) Certificate of Amendment to
Certificate of Incorporation dated October 9, 1992, (iv)
Certificate of Change of Location of Registered Office and
Registered Agent dated January 28, 1993, (v) Certificate of
Amendment to Certificate of Incorporation dated August 31, 1993,
and (vi) Certificate of Amendment to Certificate of
Incorporation dated June 12, 1996 (incorporated by reference to
Exhibit No. 4.1 to the Registration Statement on Form S-8
Commission File No. 333-14489)
4.2-4.5 Intentionally omitted
4.6 By-laws (incorporated by reference to Exhibit No. 3.5
to the Registration Statement on Form S-1 Commission File
No. 33-53488)
4.7 Indenture dated as of June 5, 1996 (the "Indenture"),
between the Registrant and Bankers Trust Company, as Trustee
(incorporated by reference to Exhibit No. 4.1 to the Registrant's
Report on Form 10-Q for the period ended September 30, 1996)
4.8 Cross reference sheet relating to the Indenture*
4.9 Registration Rights Agreement dated as of June 5, 1996,
among the Registrant, Goldman Sachs & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Alex Brown & Sons Incorporated, CS
First Boston Corporation, Prudential Securities Incorporated and
Robertson Stephens & Company, LLC (incorporated by reference to
Exhibit No. 4.2 to the Registrant's Report on Form 10-Q for the
period ended June 30, 1996)
5.1 Opinion of Ehrenreich & Krause
12.1 Computation of ratio of earnings to fixed charges
23.1 Consent of Ehrenreich & Krause (included in the
opinion filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Coopers & Lybrand L.L.P.
23.4 Awareness Letter of Coopers & Lybrand L.L.P.
23.5 Consent of Hanson Rotter & Green
23.6 Consent of Hanson Rotter & Green
24.1 Power of Attorney (included in Part II of the original
Registration Statement under the caption "Signatures")
25.1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, on Form T-1 of Bankers
Trust Company
- -----------------
* 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 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;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(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 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.
(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 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities and
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.
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3, and
has duly caused this Amendment No. 1 to Registration Statement to
be signed on its behalf by the undersigned, hereunto duly
authorized, in Greenwich, Connecticut, on the 19th day of
November, 1996.
United Waste Systems, Inc.
By: /s/Michael J. Nolan
-----------------
Michael J. Nolan
Chief Financial Officer
*
- --------------------
Bradley S. Jacobs
Chairman, Chief Executive Officer and Director (Principal
Executive Officer)
November 19, 1996
*
- --------------------
John N. Milne, Director
November 19, 1996
*
- --------------------
G. Chris Andersen, Director
November 19, 1996
*
- -------------------------
Lawrence J. Twill, Sr., Director
November 19, 1996
*
- --------------------
Christian Weyer, Director
November 19, 1996
- --------------------
J Bryan Williams, III, Director
November , 1996
/s/Michael J. Nolan
- --------------------
Michael J. Nolan, Chief Financial Officer
(principal financial officer)
November 19, 1996
/s/Sandra E. Welwood
- --------------------
Sandra E. Welwood, Vice President Controller
(principal accounting officer)
November 19, 1996
*By: /s/ Michael J. Nolan
--------------------
Michael J. Nolan
Attorney-in-Fact
Exhibit Number and Exhibit
- --------------------------
4.1 Amended and Restated Certificate of Incorporation dated
October 31, 1991, as amended by (i) Certificate of Increase of
Designated Number of Shares of Series B Cumulative Convertible
Preferred Stock dated March 31, 1992, (ii) Certificate of
Correction to Amended and Restated Certificate of Incorporation
dated April 30, 1992, (iii) Certificate of Amendment to
Certificate of Incorporation dated October 9, 1992, (iv)
Certificate of Change of Location of Registered Office and
Registered Agent dated January 28, 1993, (v) Certificate of
Amendment to Certificate of Incorporation dated August 31, 1993,
and (vi) Certificate of Amendment to Certificate of
Incorporation dated June 12, 1996 (incorporated by reference to
Exhibit No. 4.1 to the Registration Statement on Form S-8
Commission File No. 333-14489)
4.2-4.5 Intentionally omitted
4.6 By-laws (incorporated by reference to Exhibit No. 3.5
to the Registration Statement on Form S-1 Commission File
No. 33-53488)
4.7 Indenture dated as of June 5, 1996 (the "Indenture"),
between the Registrant and Bankers Trust Company, as Trustee
(incorporated by reference to Exhibit No. 4.1 to the Registrant's
Report on Form 10-Q for the period ended September 30, 1996)
4.8 Cross reference sheet relating to the Indenture*
4.9 Registration Rights Agreement dated as of June 5, 1996,
among the Registrant, Goldman Sachs & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Alex Brown & Sons Incorporated, CS
First Boston Corporation, Prudential Securities Incorporated and
Robertson Stephens & Company, LLC (incorporated by reference to
Exhibit No. 4.2 to the Registrant's Report on Form 10-Q for the
period ended June 30, 1996)
5.1 Opinion of Ehrenreich & Krause
12.1 Computation of ratio of earnings to fixed charges
23.1 Consent of Ehrenreich & Krause (included in the
opinion filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Coopers & Lybrand L.L.P.
23.4 Awareness Letter of Coopers & Lybrand L.L.P.
23.5 Consent of Hanson Rotter & Green
23.6 Consent of Hanson Rotter & Green
24.1 Power of Attorney (included in Part II of the original
Registration Statement under the caption "Signatures")
25.1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, on Form T-1 of Bankers
Trust Company
- -----------------
* Previously filed
Exhibit 5.1
November 19, 1996
United Waste Systems, Inc.
Four Greenwich Office Park
Greenwich, Connecticut 06830
Re: Registration Statement on Form S-3 (333-11109)
Gentlemen:
You have requested our opinion in connection with the above-referenced
registration statement, as amended (the "Registration
Statement"), relating to the following securities of United Waste
Systems, Inc. (the "Company") that may from time to time be sold
by the holders thereof: (i) up to $137,800,000 principal amount
of the Company's 4 1/2% Convertible Subordinated Notes due June
1, 2001 (the "Notes") and (ii) the shares (the Conversion
Shares") of the Company's Common Stock, par value $.001 per
share, that may be acquired upon conversion of any Notes covered
by the Registration Statement.
We have reviewed copies of the Amended and Restated
Certificate of Incorporation of the Company (including amendments
thereto), the By-laws of the Company, the Registration Statement
and exhibits thereto and have examined such corporate documents
and records and other certificates, and have made such
investigations of law, as we have deemed necessary in order to
render the opinion hereinafter set forth. As to certain
questions of fact material to our opinion, we have relied upon
the certificate of an officer of the Company and upon
certificates of public officials. Insofar as the following
opinions relate to the legality, validity, binding effect or
enforceability of any agreement or obligation of the Company, we
have assumed that each other party to such agreement or
obligation has satisfied those legal requirements that are
applicable to it to the extent necessary to make such agreement
or obligation enforceable against it.
Based upon and subject to the foregoing, we are of the
opinion that:
1. The Notes have been duly executed and delivered by the
Company and constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
subject to general equity principles.
2. The Conversion Shares, when issued in accordance with
the terms of the Notes and the Indenture referred to therein,
will be duly authorized and validly issued, fully paid and non-assessable.
The foregoing opinions are limited to the law of the State
of New York and the General Corporation Law of the State of
Delaware.
We hereby consent to the reference to us under the caption
"Validity of Securities" in the Registration Statement and to the
use of this opinion as an exhibit to the Registration Statement.
In giving this consent, we do not hereby admit that we come
within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
Ehrenreich & Krause
<TABLE>
Exhibit 12.1
UNITED WASTE SYSTEMS, INC.
RATIO OF EARNINGS TO FIXED CHARGES
(UNAUDITED)
<CAPTION>
Nine Months
Years ended December 31, Sept. 30,
1991 1992 1993 1994 1995 1996
<S> <C> <C> <C> <C> <C> <C>
Pretax income
from continuing
operations $ (884,557) $ 3,268,555 $16,485,591 $28,953,722 $43,609,343 $41,290,421
Fixed charges 3,008,606 3,309,877 5,179,058 7,335,587 11,713,791 12,779,198
Less:
Capitalized
interest (514,506) (156,897) (301,000) (722,000) (1,349,000) (1,200,000)
Amortization of
previously
capitalized
interest 85,533 145,916 125,849 173,983 263,916 343,916
Total earnings
(loss) $ 1,695,076 $6,567,451 $21,489,498 $35,741,292 $54,238,050 $53,213,535
Interest
expense $ 2,417,000 $3,028,133 $ 4,705,363 $ 6,424,630 $10,061,290 $11,054,451
Interest
capitalized 514,506 156,897 301,000 722,000 1,349,000 1,200,000
Amortization
of debt
issue costs 34,393 52,523 123,470 146,134 260,000 499,830
Interest portion
of rental
expense 42,707 72,324 49,225 42,823 43,501 24,917
Total fixed
charges $ 3,008,606 $3,309,877 $5,179,058 $7,335,587 $11,713,791 $12,779,198
Ratio of
earnings to
fixed charges .6 2.0 4.1 4.9 4.6 4.2
</TABLE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in Amendment No. 1 to the Registration Statement on
Form S-3 (Registration No. 333-11109) and the related Prospectus of
United Waste Systems, Inc., for the registration of up to
$137,800,000 principal amount of 4 1/2% Convertible Subordinated
Notes issued by the Company and the shares of the Company's common
stock that may be issued upon conversion of such Notes, and to the
incorporation by reference therein of our report dated February 20,
1996 with respect to the consolidated financial statements of
United Waste Systems, Inc. included in its Annual Report on Form
10-K for the year ended December 31, 1995, and of our report dated
June 28, 1996 (except for Note 13 as to which the date is August
22, 1996) with respect to the supplemental consolidated financial
statements of United Waste Systems, Inc. included in its Current
Report on Form 8-K dated June 28, 1996, filed with the Securities
and Exchange Commission.
ERNST & YOUNG LLP
MetroPark, New Jersey
November 22, 1996
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Amendment No. 1 to the registration statement on Form S-3
(Registration No. 333-11109) of United Waste Systems, Inc.,
relating to the registration of up to $137,800,000 of 4 1/2%
Convertible Subordinated Notes due June 1, 2001 and common stock
acquired upon conversion of such Notes, of our report dated July
7, 1995 except for the first paragraph of Note 1 as to which the
date is September 19, 1995, and the last paragraph of Note 5 as
to which the date is July 25, 1995, on our audit of the combined
financial statements of PRM Acquired Companies as of March 31,
1995 and 1994 and for the years then ended, which report is
included in United Waste Systems, Inc's Report on Form 8-K/A
Amendment No. 1 to Form 8-K dated September 19, 1995 (Filed on
October 4, 1995). We also consent to the reference to our firm
under the caption "Experts".
Coopers & Lybrand L.L.P.
Springfield, Massachusetts
November 22,1996
Exhibit 23.4
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
United Waste Systems, Inc.
We are aware that our report dated October 25, 1995 on our
review of interim financial information of PRM Acquired Companies
for the three months ended June 30, 1995 and included in the
United Waste Systems, Inc. Form 8-K/A Amendment No. 1 to its Form
8-K dated September 19, 1995 (filed on October 4, 1995) is
incorporated by reference in this United Waste Systems, Inc.
registration statement on Form S-3 (Registration No. 333-11109)
relating to the registration of up to $137,800,000 of 4 1/2%
Convertible Subordinated Notes due June 1, 2001 and common stock
acquired upon conversion of such Notes. Pursuant to Rule 436(c)
under the Securities Act of 1933, this report should not be
considered a part of the registration statement prepared or
certified by us within the meaning of Sections 7 and 11 of that
Act.
Coopers & Lybrand L.L.P.
Springfield, Massachusetts
November 22,1996
Exhibit 23.5
November 22, 1996
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this
Amendment No. 1 to the Registration Statement on Form S-3 (No.
333-11109)and the related Prospectus of United Waste Systems,
Inc. (the "Company"), for the registration of $137,800,000
principal amount of 4 1/2% Convertible Subordinated Notes issued
by the Company and the shares of the Company's common stock that
may be issued upon conversion of such Notes, of our report dated
November 21, 1995 with respect to the combined financial
statements of Carmel Marina Corporation and Affiliates as of
December 31, 1994, included in the Company's Annual Report on
Form 10-K for the year ended December 31, 1995 filed with the
Securities and Exchange Commission.
HANSON ROTTER GREEN
Exhibit 23.6
November 22, 1996
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this
Amendment No. 1 to the Registration Statement on Form S-3 (No.
333-11109)and the related Prospectus of United Waste Systems,
Inc. (the "Company"),for the registration of $137,800,000
principal amount of 4 1/2% Convertible Subordinated Notes issued
by the Company and the shares of the Company's common stock that
may be issued upon conversion of such Notes, of our report dated
May 20, 1994 with respect to the combined financial statements of
Carmel Marina Corporation and Affiliates as of December 31, 1993,
included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 filed with the Securities and Exchange
Commission.
HANSON ROTTER GREEN
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ___________
______________________________
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK
(Jurisdiction of Incorporation or
organization if not a U.S. national bank)
13-4941247
(I.R.S. Employer
Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for
service)
_____________________________
United Waste Systems, Inc.
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of
Incorporation or organization)
13-3532338
(I.R.S. employer
Identification no.)
FOUR GREENWICH OFFICE PARK
GREENWICH, CONNECTICUT 06830
(Address of principal (Zip Code)
executive offices)
$150,000,000, 4 1/2% CONVERTIBLE SUBORDINATED NOTES
DUE JUNE 1, 2001
(Title of the indenture securities)
Item 1. General Information.
Furnish the following information as to the
trustee.
(a) Name and address of each examining or
supervising authority to which it is
subject.
Name Address
Federal Reserve Bank
(2nd District) New York, NY
Federal Deposit
Insurance Corporation Washington, D.C.
New York State
Banking Department Albany, NY
(b) Whether it is authorized to exercise
corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the
Trustee, describe each such affiliation.
None.
Item 3.
-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization
Certificate of Bankers Trust
Company dated August 7, 1990,
Certificate of Amendment of
the Organization Certificate
of Bankers Trust Company dated
June 21, 1995 - Incorporated
herein by reference to Exhibit
1 filed with Form T-1
Statement, Registration No.
33-65171, and Certificate of
Amendment of the Organization
Certificate of Bankers Trust
Company dated March 20, 1996,
copy attached.
Exhibit 2 - Certificate of Authority to
commence business -
Incorporated herein by
reference to Exhibit 2 filed
with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee
to exercise corporate trust
powers - Incorporated herein
by reference to Exhibit 2
filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers
Trust Company, dated as
amended on October 19, 1995. -
Incorporated herein by
reference to Exhibit 4 filed
with Form T-1 Statement,
Registration No. 33-65171.
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust
Company required by Section
321(b) of the Act. -
Incorporated herein by
reference to Exhibit 4 filed
with Form T-1 Statement,
Registration No. 22-18864.
Exhibit 7 - A copy of the latest report of
condition of Bankers Trust
Company dated as of
September 30, 1996.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture
Act of 1939, as amended, the trustee, Bankers Trust
Company, a corporation organized and existing under the
laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in The
City of New York, and State of New York, on the 18th
day of November, 1996.
BANKERS TRUST COMPANY
By: Susan Johnson
Susan Johnson
Assistant Vice President
State of New York,
Banking Department
I, PETER M. PHILBIN, Deputy Superintendent of Bank
of the State of New York, DO HEREBY APPROVE the annexed
Certificate entitled "CERTIFICATE OF AMENDMENT OF THE
ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under
Section 8005 of the Banking Law," dated March 20, 1996,
providing for an increase in authorized capital stock
from $1,351,666,670 consisting of 85,166,667 shares
with a par value of $10 each designated as Common Stock
and 500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock to $1,501,666,670
consisting of 100,166,667 shares with a par value of
$10 each designated as Common Stock and 500 shares with
a par value of $1,000,000 each designated as Series
Preferred Stock.
Witness, my hand and official seal of the Banking
Department at the City of New York,
this 21st day of March in the Year of our
Lord one thousand nine hundred and ninety-six.
Peter M. Philbin
Deputy Superintendent of
Banks
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being
respectively a Managing Director and an Assistant
Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust
Company.
2. The organization certificate of said
corporation was filed by the Superintendent of Banks on
the 5th of march, 1903.
3. The organization certificate as heretofore
amended is hereby amended to increase the aggregate
number of shares which the corporation shall have
authority to issue and to increase the amount of its
authorized capital stock in conformity therewith.
4. Article III of the organization certificate
with reference to the authorized capital stock, the
number of shares into which the capital stock shall be
divided, the par value of the shares and the capital
stock outstanding, which reads as follows:
"III. The amount of capital stock which the
corporation is hereafter to have is One Billion, Three
Hundred Fifty One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,351,666,670),
divided into Eighty-Five Million, One Hundred Sixty-Six
Thousand, Six Hundred Sixty-Seven (85,166,667) shares
with a par value of $10 each designated as Common Stock
and 500 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the
corporation is hereafter to have is One Billion, Five
Hundred One Million, Six Hundred Sixty-Six Thousand,
Six Hundred Seventy Dollars ($1,501,666,670), divided
into One Hundred Million, One Hundred Sixty Six
Thousand, Six Hundred Sixty-Seven (100,166,667) shares
with a par value of $10 each designated as Common Stock
and 500 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred
Stock."
6. The foregoing amendment of the organization
certificate was authorized by unanimous written consent
signed by the holder of all outstanding shares entitled
to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this
certificate this 20th day of March , 1996.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says
that she is an Assistant Secretary of Bankers Trust
Company, the corporation described in the foregoing
certificate; that she has read the foregoing
certificate and knows the contents thereof, and that
the statements herein contained are true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 20th day
of March, 1996.
Sandra L. West
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1996
Counterpart filed in the
Office of the Superintendent of
Banks, State of New York,
This 21st day of March, 1996
Exhibit 7
Legal Title of Bank: Bankers Trust Company
Address: 130 Liberty Street
City, State ZIP: New York, NY 10006
FDIC Certificate No.: 0 0 6 2 3
Call Date: 9/30/96
Vendor ID: D
ST-BK: 36-4840
CERT: 00623
FFIEC 031
Page RC-1
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks September 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of
the quarter.
Schedule RC--Balance Sheet
C400
Dollar Amounts
in Thousands RCFD Bil Mil Thou
--------------
ASSETS
1. Cash and balances due from
depository institutions
(from Schedule RC-A):
a. Noninterest-bearing
balances and currency
and coin(1) 0081 809,000 1.a.
b. Interest-bearing
balances(2) 0071 4,453,000 1.b.
2. Securities:
a. Held-to-maturity securities
(from Schedule RC-B,
column A) 1754 0 2.a.
b. Available-for-sale
securities (from Schedule
RC-B, column D) 1773 4,133,000 2.b.
3. Federal funds sold and securities
purchased under agreements to
resell in domestic offices of the bank
and of its Edge
and Agreement subsidiaries, and in
IBFs:
a. Federal funds sold 0276 5,933,000 3 a.
b. Securities purchased
under agreements to resell 0277 413,000 3.b.
4. Loans and lease financing
receivables:
a. Loans and leases, net of
unearned income (from
Schedule RC-C) RCFD 2122 27,239,000 4.a.
b. LESS:
Allowance for loan
and lease losses RCFD 3123 917,000 4.b.
c. LESS:
Allocated transfer
risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of
unearned income, allowance, and
reserve (item 4.a minus
4.b and 4.c) 2125 26,322,000 4.d.
5. Assets held in trading accounts 3545 36,669,000 5.
6. Premises and fixed assets
(including capitalized leases) 2145 870,000 6.
7. Other real estate owned (from
Schedule RC-M) 2150 215,000 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M) 2130 212,000 8.
9. Customers' liability to this
bank on acceptances outstanding 2155 577,000 9.
10. Intangible assets (from Schedule
RC-M) 2143 18,000 10.
11. Other assets (from Schedule RC-F) 2160 8,808,000 11.
12. Total assets (sum of items 1
through 11) 2170 89,432,000 12.
__________________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
Legal Title of Bank: Bankers Trust Company
Address: 130 Liberty Street
City, State ZIP: New York, NY 10006
FDIC Certificate No.: 0 0 6 2 3
Call Date: 9/30/96
Vendor ID:D
ST-BK: 36-4840
CERT: 00623
FFIEC 031
Page RC-2
Schedule RC--Continued
Dollar Amounts in Thousands Bil Mil Thous
LIABILITIES
13. Deposits: a. In domestic
offices (sum of
totals of
columns A and C
from Schedule
RC-E, part I) RCON 2200 9,391,000 13.a.
(1) Noninterest-
bearing(1) RCON 6631 2,734,000 13.a.(1)
(2) Interest-
bearing RCON 6636 6,657,000 13.a.(2)
b. In foreign offices, Edge and
Agreement subsidiaries, and IBFs
(from Schedule RC-E part II) RCFN 2200 23,385,000 13.b.
(1) Noninterest-
bearing RCFN 6631 654,000 13.b.(1)
(2) Interest-
bearing RCFN 6636 22,731,000 13.b.(2)
14. Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of its
Edge and Agreement subsidiaries,
and in IBFs:
a. Federal funds purchased RCFD 0278 3,090,000 14.a.
b. Securities sold under
agreements to repurchase RCFD 0279 99,000 14.b.
15. a. Demand notes issued
to the U.S. Treasury RCON 2840 0 15.a.
b. Trading liabilities RCFD 3548 18,326,000 15.b.
16. Other borrowed money:
a. With original maturity
of one year or less RCFD 2332 17,476,000 16.a.
b. With original maturity
of more than one year RCFD 2333 2,771,000 16.b.
17. Mortgage indebtedness and
obligations under
capitalized leases RCFD 2910 31,000 17.
18. Bank's liability on
acceptances executed
and outstanding RCFD 2920 577,000 18.
19. Subordinated notes and
debentures RCFD 3200 1,228,000 19.
20. Other liabilities
(from Schedule RC-G) RCFD 2930 8,398,000 20.
21. Total liabilities (sum
of items 13 through 20) RCFD 2948 84,772,000 21.
22. Limited-life preferred
stock and related surplus RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock
and related surplus RCFD 3838 500,000 23.
24. Common stock RCFD 3230 1,002,000 24.
25. Surplus (exclude all surplus
related to preferred stock) RCFD 3839 527,000 25.
26. a. Undivided profits and
capital reserves RCFD 3632 3,017,000 26.a.
b. Net unrealized holding gains
(losses) on available-for-sale
securities RCFD 8434 (16,000) 26.b.
27. Cumulative foreign currency
translation adjustments RCFD 3284 (370,000) 27.
28. Total equity capital
(sum of items 23 through 27) RCFD 3210 4,660,000 28.
29. Total liabilities, limited-life
preferred stock, and equity capital
(sum of items 21, 22,
and 28) RCFD 3300 89,432,000 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external Number
auditors as of any date during 1995.....RCFD 6724 N/A M.1
1= Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm
which submits a report on the bank
2= Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3= Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4= Director's examination of the bank performed by other external
auditors (may be required by state chartering authority)
5= Review of the bank's financial statements by external auditors
6= Compilation of the bank's financial statements by external auditors
7= Other audit procedures (excluding tax preparation work)
8= No external audit work
______________________
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
