<TABLE>
<CAPTION>
<S> <C>
As filed with the Securities and Exchange Commission on March 17, 2000 Registration No. 333-________________
</TABLE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
U.S. WIRELESS CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
DELAWARE 13-3704059
(State or other jurisdiction of Incorporation (I.R.S. Employer Identification Number)
or organization)
</TABLE>
2303 Camino Ramon, Suite 200
San Ramon, California 94583
(925) 327-6200
(Address and telephone number of Registrant's principal executive offices)
DR. OLIVER HILSENRATH
Chief Executive Officer
U.S. Wireless Corporation
2303 Camino Ramon, Suite 200
San Ramon, California 94583
(925) 327-6200
(Name, address, including ZIP code, and telephone number, including area
code, of agent for service)
---------------
Copies to:
<TABLE>
<CAPTION>
<S> <C>
DAVID KLARMAN, ESQ. GREGORY EZRING, ESQ.
U.S. Wireless Corporation Latham & Watkins
2303 Camino Ramon, Suite 200 885 Third Avenue
San Ramon, California 94583 New York, New York 10022
(925) 327-6200 (212) 906-1200
</TABLE>
-----------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement, as determined by the Registrant.
---------------
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|
<PAGE>
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
-------------
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================== ==================== ==================== ==================== ======================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount To Be Offering Price Aggregate Offering Registration
Securities to be Registered Registered Per Unit(1) Price(1) (2) (3) Fee(4)
- ---------------------------------------------- -------------------- -------------------- -------------------- ----------------------
<S> <C> <C> <C> <C>
Debt Securities (5) - (8) - -
Preferred Stock, $ 0.01 par value (6) - (8) - -
Common Stock, $ 0.01 par value (7) - (8) - -
Debt Warrants - (8) - -
Equity Warrants - (8) - -
Units - (8) - -
Total $450,000,000 (8) $450,000,000 $118,000
================================================= ==================== ==================== ==================== ===================
</TABLE>
(1) In U.S. dollars. The proposed maximum offering price per unit will be
determined from time to time by the Registrant in connection with the issuance
of the securities registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee.
In no event will the aggregate maximum offering price of all securities issued
under this Registration Statement exceed $450,000,000. If any Debt Securities
are issued with original issue discount, we will register such greater amount as
shall result in proceeds of $450,000,000 to the Registrant.
(3) With respect to Debt Securities, excluding accrued interest and accrued
amortization of discount, if any, to the date of delivery.
(4) The registration fee has been calculated in accordance with Rule 457(o)
of the Securities Act.
(5) Debt Securities may be issued in primary offerings and/or upon exercise
of Debt Warrants registered hereby.
(6) Shares of Preferred Stock may be issued in primary offerings, upon
conversion of Debt Securities registered hereby, and/or upon exercise of Equity
Warrants registered hereby.
(7) Shares of Common Stock may be issued in primary offerings, upon
conversion of Debt Securities and/or Preferred Stock registered hereby, and/or
upon exercise of Equity Warrants registered hereby. The aggregate amount of
Common Stock registered hereby that may be sold in at-the-market offerings is
limited to that which is permissible under Rule 415(a)(4) under the Securities
Act.
(8) Omitted pursuant to General Instruction II(D) of Form S-3 under the
Securities Act.
<PAGE>
---------------
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED __________, 2000
PROSPECTUS
U.S. WIRELESS CORPORATION
$450,000,000
Debt Securities, Preferred Stock, Common Stock,
Debt Warrants, Equity Warrants and Units
------------------
U.S. Wireless Corporation may offer, from time to time, in one or more
series or issuances, at prices and on terms that it will determine at the time
of offering, up to $450,000,000 in gross proceeds to us:
o secured or unsecured debt securities;
o shares of preferred stock;
o shares of common stock;
o warrants to purchase debt securities;
o warrants to purchase common stock or preferred stock; or
o units consisting of two or more of the foregoing securities.
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the applicable supplement
carefully before you invest.
------------------
These securities have not been approved or disapproved by the Securities and
Exchange Commission or any state securities commission nor have these
organizations determined that this prospectus is accurate or complete. Any
representation to the contrary is a criminal offense.
------------------
The date of this prospectus is______________, 2000.
<PAGE>
We have not authorized any dealer, salesman or other person to give any
information or to make any representation other than those contained or
incorporated by reference in this prospectus and the accompanying prospectus
supplement. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or the accompanying
prospectus supplement as if we had authorized it. This prospectus and the
accompanying prospectus supplement do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor do this prospectus and the accompanying
prospectus supplement constitute an offer to sell or the solicitation of an
offer to buy securities in any jurisdiction where the offer or sale is not
permitted. The information contained in this prospectus and the accompanying
prospectus supplement is accurate as of the dates on their covers. When we
deliver this prospectus or a supplement or make a sale pursuant to this
prospectus, we are not implying that the information is current as of the date
of the delivery or sale.
----------------
Table of Contents
<TABLE>
<CAPTION>
<S> <C>
ABOUT THIS PROSPECTUS................................................................3
WHERE YOU CAN FIND MORE INFORMATION..................................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE......................................3
CAUTIONARY LANGUAGE REGARDING FORWARD-LOOKING STATEMENTS.............................4
THE COMPANY..........................................................................5
RISK FACTORS.........................................................................5
USE OF PROCEEDS......................................................................5
DESCRIPTION OF DEBT SECURITIES.......................................................5
DESCRIPTION OF PREFERRED STOCK......................................................14
DESCRIPTION OF COMMON STOCK.........................................................18
DESCRIPTION OF WARRANTS.............................................................19
DESCRIPTION OF UNITS................................................................21
PLAN OF DISTRIBUTION................................................................21
LEGAL MATTERS.......................................................................22
EXPERTS.............................................................................22
</TABLE>
----------------
Whenever we refer to the "Company" or to "us," or use the terms "we" or
"our" in this prospectus, we are referring to U.S. Wireless Corporation, a
Delaware corporation, and its consolidated subsidiaries. However, for purposes
of the sections entitled "Description of Debt Securities," "Description of
Preferred Stock, "Description of Common Stock," "Description of Warrants" and
"Description of Units," whenever we refer to the "Company" or to "us," or use
the terms "we" or "our," we are referring only to U.S. Wireless Corporation.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf registration process, we may sell any combination of the
securities described in this prospectus in one or more offerings resulting in
gross proceeds to us of up to $450,000,000. This prospectus provides you with a
general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. To the extent
that any statement that we make in a prospectus supplement is inconsistent with
statements made in this prospectus, the statements made in this prospectus will
be deemed modified or superseded by those made in a prospectus supplement. You
should read both this prospectus and any prospectus supplement together with
additional information described under the next heading "Where You Can Find More
Information" and the information we incorporate by reference in this prospectus
described under the heading "Incorporation of Certain Documents by Reference."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Commission. You can inspect and copy these reports, proxy
statements and other information at the public reference facilities of the
Commission, in Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the regional offices of the Commission located at 7 World Trade Center, Suite
1300, New York, New York 10048 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. You can also obtain copies of these
materials from the public reference section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Please call the
Commission at 1-800-SEC-0330 for further information on the public reference
rooms. The Commission also maintains a web site that contains reports, proxy
statements and other information regarding registrants that file electronically
with the Commission (http://www.sec.gov). You can inspect reports and other
information we file at the office of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
We have filed with the Commission a registration statement and related
exhibits on Form S-3 under the Securities Act of 1933, as amended. This
prospectus, which is a part of the registration statement, omits certain
information contained in the registration statement. Statements made in this
prospectus as to the contents of any contract, agreement or other document are
not necessarily complete. With respect to each contract, agreement or other
document filed as an exhibit to the registration statement, we refer you to that
exhibit for a more complete description of the matter involved, and each
statement is deemed qualified in its entirety to that reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to incorporate by reference the information we
file with the Commission. This means that we can disclose important information
to you by referring to those documents. The information incorporated by
reference is an important part of this prospectus, and information that we file
later with the Commission will automatically update and supersede this
information. We incorporate by reference the following documents we filed with
the Commission pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended:
o Annual Report on Form 10-KSB for the year ended March 31, 1999;
o Quarterly Reports on Form 10-QSB for the quarters ended June 30, 1999,
September 30, 1999 and December 31, 1999;
o Current Report on Form 8-K filed on May 18, 1998;
o Current Report on Form 8-K filed on March 16, 2000;
o description of our common stock contained in our registration statement
on Form 8-A filed with the Commission on August 22, 1994; and
<PAGE>
o all documents filed by us with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and
prior to the termination of the offering of securities.
You may request a copy of these filings at no cost, by writing or
telephoning us at U.S. Wireless Corporation, Attention: Investor Relations, 2303
Camino Ramon, Suite 220, San Ramon, California 94583 (telephone (925) 327-6200).
CAUTIONARY LANGUAGE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any applicable prospectus supplement and the documents that we
incorporate by reference, may contain certain statements that we believe are, or
may be considered to be, forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. We generally indicate these statements by words or phrases
such as "anticipate," "estimate," "plan," "expect," "believe," "intend,"
"foresee" and similar words or phrases. These statements discuss, among other
things, expected growth, domestic and international development and expansion
strategy, and future performance. All of these forward-looking statements are
subject to risks, uncertainties and assumptions, which we will describe under
the caption "Risk Factors" in supplements to this prospectus or in the documents
we incorporate by reference. Consequently, actual events and results may vary
significantly from those included in or contemplated or implied by our
forward-looking statements. The forward-looking statements included in this
prospectus, the applicable prospectus supplement or the relevant incorporated
document are made only as of the date of this prospectus, the applicable
prospectus supplement or the relevant incorporated document, as the case may be,
and, except as required by law, we undertake no obligation to publicly update
these forward-looking statements to reflect subsequent events or circumstances.
<PAGE>
THE COMPANY
We have developed a network-based location system designed to enable
wireless carriers and others to provide their customers with location-based
services and applications. These services include but are not limited to
enhanced 911, live navigation assistance, enhanced 411, asset and vehicle
tracking, intelligent transportation systems (ITS), location sensitive billing
and network management systems. Our RadioCameraTM location system is a
geographic location system that pinpoints the locations of mobile telephone
subscribers within a wireless network. Using proprietary technology developed by
us, the RadioCamera system measures the radio frequency pattern or the phase
(i.e., the timing and the amplitude path) of all the radio frequency signals
from a caller to a single cell site.
Our executive offices are located at 2303 Camino Ramon, Suite 200, San
Ramon, California 94583 and our telephone number is (925) 327-6200. U.S.
Wireless Corporation is a Delaware corporation.
RISK FACTORS
The prospectus supplement applicable to each type or series of securities
we offer will contain a discussion of risks applicable to an investment in our
company and to the particular types of securities that we are offering under
that supplement. Prior to making a decision about investing in our securities,
you should carefully consider the specific factors discussed under the caption
"Risk Factors" in the applicable prospectus supplement, together with all of the
other information contained in the prospectus supplement or appearing or
incorporated by reference in the registration statement of which this prospectus
is a part.
USE OF PROCEEDS
Unless we indicate otherwise in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of securities for general corporate
purposes, which may include but are not limited to network expansion, working
capital, capital expenditures and growth of our business. Pending the
application of the net proceeds, we may invest these proceeds in short-term,
interest-bearing instruments or other investment-grade securities.
DESCRIPTION OF DEBT SECURITIES
The following description summarizes certain general terms and provisions
of the debt securities to which any prospectus supplement may relate. When we
offer to sell a particular series of debt securities, we will describe the
specific terms of the series in a supplement to this prospectus. We will also
indicate in the supplement whether the general terms and provisions described in
this prospectus apply to a particular series of debt securities.
The debt securities will be issued under one or more indentures between us
and a trustee chosen by us and qualified to act under the Trust Indenture Act of
1939, as amended. The form of indenture will be filed as an exhibit to the
registration statement of which this prospectus is a part, and every definitive
indenture will be filed by us from time to time by means of an exhibit to Form
8-K and will be available for inspection at the corporate trust office of the
trustee, or as described above under "Where You Can Find More Information." The
indentures are subject to, and governed by, the Trust Indenture Act. We will
execute an indenture if and when we issue any debt securities. The statements
contained in this prospectus relating to the indentures and the debt securities
we may issue thereunder are summaries and do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all provisions
of the indentures (including those terms made a part of the indenture by
reference to the Trust Indenture Act) and these debt securities. Capitalized
terms used but not defined below herein shall have the respective meanings set
forth in the indentures. References below to an "indenture" are references to
the applicable indenture under which a particular series of debt securities is
issued.
General
The terms of each series of debt securities will be established by or
pursuant to a resolution of our Board of Directors or by a supplemental
indenture. We will describe the particular terms of each series of debt
securities in a prospectus supplement relating to that series.
<PAGE>
We can issue an unlimited amount of debt securities under the indenture.
We can issue these securities in one or more series with the same or various
maturities, at par, at a premium, or at a discount. We will set forth in a
prospectus supplement relating to any series of debt securities being offered,
the aggregate principal amount and the following terms of the debt securities:
o the title of the debt securities;
o whether the debt securities are senior debt securities or subordinated
debt securities or any combination thereof and, if subordinated debt securities,
the subordination terms relating to those securities;
o the price or prices (expressed as a percentage of the aggregate principal
amount) at which we will sell the debt securities;
o any limit upon the aggregate principal amount of the debt securities;
o the date or dates on which we will pay the principal on the debt
securities;
o the rate or rates (which may be fixed or variable) or the method by which
such rate or rates will be determined, at which the debt securities will bear
interest, if any;
o the date or dates from which any interest will accrue, the dates upon
which any interest will be payable and the record dates for payment of interest;
o the place or places where principal of (and premium, if any) and
interest, if any, on the debt securities will be payable;
o any obligation we have to redeem, repurchase or repay the debt securities
in whole or in part pursuant to any sinking fund or analogous provisions or at
the option of a holder of the debt securities, and the price or prices at which
and the period or periods within which and the terms and conditions upon which
we will redeem, repurchase or repay the debt securities;
o the denominations in which the debt securities will be issued, if other
than denominations of U.S. $1,000 and any integral multiple thereof;
o the portion of the principal amount of the debt securities payable upon
declaration of the acceleration of the maturity date, if other than the
principal amount;
o any addition to or change in the covenants in the indenture applicable to
the debt securities;
o any addition to or change in the events of default described in this
prospectus or in the indenture with respect to the debt securities;
o whether we will issue the debt securities in global form and, if so, the
terms and conditions, if any, upon which global debt securities may be exchanged
for other individual securities, and the name of the depositary for the debt
securities;
o the terms and conditions, if any, upon which the debt securities shall be
exchanged for or converted into common stock or preferred stock;
o any provisions relating to any security provided for the debt securities;
o the form and terms of any guarantee of the debt securities;
o if the principal amount payable at the stated maturity of any debt
securities will not be determinable as of any one or more dates prior to the
stated maturity, the amount which will be deemed to be the principal amount as
of any date for any purpose, including the principal amount which will be due
and payable upon any maturity other than the stated maturity or which will be
deemed to be outstanding as of any such date (or, in any such case, the manner
in which such deemed principal amount is to be determined);
<PAGE>
o if applicable, that the debt securities are defeasible pursuant to the
provisions of the indenture;
o whether the debt securities will be listed on any securities exchange or
included in any other market or quotation or trading system;
o any trustee or fiscal or authenticating or payment agent, issuing and
paying agent, transfer agent or registrar or any other person or entity to act
in connection with the debt securities for or on our behalf or on behalf of the
holders of the debt securities; and
o any other terms of the debt securities, which may modify or delete any
provision of the indenture as it applies to that series.
We may issue debt securities at a discount below their stated principal
amount and provide for less than the entire principal amount of the debt
securities to be payable upon declaration of acceleration of maturity. In that
event, we will describe any material federal income tax considerations and other
material considerations in the applicable prospectus supplement.
We may issue debt securities in bearer form, with or without coupons. In
that event, we will describe any material federal income tax considerations and
other material considerations in the applicable prospectus supplement.
Status of Debt Securities
The senior debt securities will rank equally with all of our other
unsecured and unsubordinated indebtedness.
Our obligations pursuant to subordinated debt securities will be
subordinate in right of payment to all of our senior indebtedness. With respect
to any series of subordinated debt securities, except as otherwise set forth in
the applicable prospectus supplement, our "senior indebtedness" means the
principal of, and premium, if any, and any interest (including interest accruing
subsequent to the commencement of any proceeding for our bankruptcy or
reorganization under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) and all other monetary obligations of every kind or nature
due on or in connection with the following:
o all our indebtedness (including senior debt securities) regardless of
when incurred (a) for borrowed money or (b) in connection with our acquisition
of assets other than in the ordinary course of business, for the payment of
which we are liable directly or indirectly by guarantee, letter of credit,
obligation to purchase or acquire or otherwise, or the payment of which is
secured by a lien, charge or encumbrance on assets we acquired;
o amendments, modifications, renewals, extensions and deferrals of any such
indebtedness; and
o any indebtedness issued in exchange for any such indebtedness (these
three bullet points are collectively referred to herein as "Debt");
provided, however, that the following will not constitute senior indebtedness
with respect to subordinated debt securities:
o any Debt as to which, in the instrument evidencing such Debt or pursuant
to which such Debt was issued, it is expressly provided that such Debt is
subordinate in right of payment to all our Debt not expressly subordinated to
such Debt; and
o any of our Debt in respect of subordinated debt securities and any Debt
which by its terms refers explicitly to the subordinated debt securities and
states that such Debt shall not be senior in right of payment.
<PAGE>
We may not make any payment pursuant to the subordinated debt securities
unless all amounts of principal, premium, if any, and interest then due on all
applicable senior indebtedness has been paid in full or if there has occurred
and is continuing beyond any applicable grace period a default in any payment
with respect to any applicable senior indebtedness, or if there has occurred any
event of default with respect to any applicable senior indebtedness permitting
the holders to accelerate the maturity of the senior indebtedness, or if any
judicial proceeding is pending with respect to any such default. However, we may
make payments pursuant to the subordinated debt securities if a default in
payment or an event of default with respect to the senior indebtedness
permitting the holder to accelerate the maturity of the senior indebtedness has
occurred and is continuing and judicial proceedings with respect thereto have
not been commenced within a certain number of days of such default in payment or
event of default.
Upon any distribution of our assets upon dissolution, winding-up,
liquidation or reorganization, the holders of our senior indebtedness will be
entitled to receive payment in full of principal, premium, if any, and interest
(including interest accruing subsequent to the commencement of any proceeding
for our bankruptcy or reorganization under any applicable bankruptcy, insolvency
or similar law now or hereafter in effect) before any payment is made on the
subordinated debt securities. By reason of the subordination, in the event of
our insolvency, holders of our senior indebtedness may receive more, ratably,
and holders of the subordinated debt securities having a claim pursuant to the
subordinated debt securities may receive less, ratably, than our other
creditors. Such subordination will not prevent the occurrence of any event of
default (an "Event of Default") in respect of the subordinated debt securities.
If we offer debt securities, the applicable prospectus supplement will set
forth the aggregate amount of outstanding indebtedness, if any, as of the most
recent practicable date that by the terms of such debt securities would be
senior to such debt securities. The applicable prospectus supplement will also
set forth any limitation on our ability to issue any additional senior
indebtedness and will describe in more detail the material terms of the
subordination provisions of these securities, including relevant definitions.
Conversion Rights
The terms, if any, on which a series of debt securities may be exchanged
for or converted into shares of common stock or preferred stock will be set
forth in the applicable prospectus supplement.
Exchange, Registration, Transfer and Payment
Unless we specify otherwise in the applicable prospectus supplement,
payment of principal, premium, if any, and any interest on the debt securities
will be payable, and the exchange of and the transfer of debt securities will be
registrable, at the office of the trustee or at any other office or agency
maintained by us for that purpose subject to the limitations of the indenture.
Unless we indicate otherwise in the applicable prospectus supplement, we will
issue the debt securities in denominations of U.S. $1,000 or integral multiples
thereof. We will not require a service charge for any registration of transfer
or exchange of the debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge.
Global Debt Securities
We may issue the debt securities of a series in the form of one or more
global securities that we will deposit with a depositary or its nominee
identified in the applicable prospectus supplement. In that event, we will issue
one or more global securities in a denomination or in aggregate denominations
equal to the portion of the aggregate principal amount of outstanding debt
securities of the series to be represented by a global security or securities.
We will deposit each global security with the depositary or nominee or a
custodian therefor and each global security will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof referred to below
and any other matters as may be provided for pursuant to the applicable
indenture.
Notwithstanding any provision of the indenture or any debt security
described in this prospectus, no global security may be transferred to, or
registered or exchanged for debt securities registered in the name of, any
person or entity other than the depositary for the global security or any
nominee of the depositary, and no such transfer may be registered, unless:
<PAGE>
o the depositary has notified us that it is unwilling or unable to continue
as depositary for the global security or has ceased to be qualified to act as
such as required by the applicable indenture;
o we execute and deliver to the trustee an order that the global security
shall be so transferable, registrable and exchangeable, and those transfers
shall be registrable; or
o there shall exist circumstances, if any, as may be described in the
applicable prospectus supplement.
All debt securities issued in exchange for a global security or any
portion thereof will be registered in such names as the depositary may direct.
We will describe the specific terms of the depositary arrangement with
respect to any portion of a series of debt securities to be represented by a
global security in the applicable prospectus supplement. We expect that the
following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable prospectus supplement, debt
securities which are to be represented by a global security to be deposited with
or on behalf of a depositary will be represented by a global security registered
in the name of the depositary or its nominee. Upon the issuance of a global
security, and the deposit of the global security with or on behalf of the
depositary for the global security, the depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the debt securities represented by the global security to the accounts of
institutions that have accounts with the depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of the debt securities or by us, if the debt securities
are offered and sold directly by us. Ownership of beneficial interests in the
global security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests by
participants in the global security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
depositary or its nominee for the global security. Ownership of beneficial
interests in the global security by persons that hold through participants will
be shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by the participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of the securities in certificate form. The foregoing
limitations and these laws may impair the ability to transfer beneficial
interests in the global securities.
So long as the depositary for a global security, or its nominee, is the
registered owner of the global security, the depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the debt securities
represented by the global security for all purposes under the indenture. Unless
otherwise specified in the applicable prospectus supplement, owners of
beneficial interests in the global security will not be entitled to have debt
securities of the series represented by the global security registered in their
names, will not receive or be entitled to receive physical delivery of debt
securities of the series in certificate form and will not be considered the
holders thereof for any purposes under the indenture. Accordingly, each person
owning a beneficial interest in the global security must rely on the procedures
of the depositary and, if that person is not a participant, on the procedures of
the participant through which the person owns its interest, to exercise any
rights of a holder under the indenture. If we request any action of holders or
if an owner of a beneficial interest in a global security desires to give any
notice or take any action a holder is entitled to give or take under the
indenture, the depositary will authorize the participants to give that notice or
take that action, and participants would authorize beneficial owners owning
through those participants to give that notice or take that action or would
otherwise act upon the instructions of beneficial owners owning through them.
<PAGE>
Notwithstanding any other provisions to the contrary in the indenture, the
rights of the beneficial owners of the debt securities to receive payment of the
principal and premium, if any, of and interest, if any, on the debt securities,
on or after the respective due dates expressed in the debt securities, or to
institute suit for the enforcement of these payments on or after these
respective dates, shall not be impaired or affected without the consent of the
beneficial owners.
Principal of and any interest on a global security will be payable in the
manner described in the applicable prospectus supplement.
Consolidation, Merger and Sale of Assets
Unless we specify otherwise in the applicable prospectus supplement, the
indenture will provide that we may not consolidate with or merge with or into,
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of our property or assets to any person (a "successor person")
in one or more related transactions unless, among other things:
o we are the surviving corporation or the successor person, if other than
us, is a corporation organized and existing under the laws of the United States,
any state thereof or the District of Columbia;
o the successor person, if other than us, assumes all of our obligations
under the debt securities and the indenture; and
o immediately prior to and after giving effect to the transaction, no Event
of Default shall have occurred and be continuing.
Notwithstanding the foregoing, any of our subsidiaries may consolidate with,
merge into or transfer all or part of its properties and assets to us.
Events of Default
Unless we specify otherwise in the applicable prospectus supplement, the
following will constitute Events of Default under the indenture with respect to
debt securities of any series:
o failure to pay principal of, or premium, if any, on any debt security of
that series when due and payable;
o failure to pay any interest on any debt security of that series when due,
and continuance of that default for thirty days;
o failure to pay any mandatory sinking fund payment, when and as due by the
terms of any debt securities of that series;
o failure to comply with any of our other agreements in the debt securities
of that series or in the indenture with respect to that series, which default
continues for the period and after the notice provided in the applicable
prospectus supplement;
o failure to pay principal when due or resulting in acceleration of any of
our other Debt where the aggregate principal amount with respect to which that
default or acceleration has occurred exceeds $20 million, provided that this
default will be cured or waived if the default that resulted in the acceleration
of our other indebtedness is cured or waived or that indebtedness is discharged;
and
o certain events of bankruptcy, insolvency or reorganization.
Except as set forth in the applicable prospectus supplement, a default
under the fourth or fifth bullet points above is not an Event of Default with
respect to a particular series of debt securities until the trustee or the
holders of at least 25% in principal amount of the then outstanding debt
securities of that series notify us of the default and we do not cure the
default within sixty days after receipt of the notice. The notice must specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default."
<PAGE>
If an Event of Default with respect to outstanding debt securities of any
series, other than an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization, shall occur and be continuing, either the trustee
or the holders of at least 25% in principal amount of the outstanding debt
securities of that series by notice, as provided in the indenture, may declare
the unpaid principal amount (or, if the debt securities of that series are
original issue discount securities, such lesser amount as may be specified in
the terms of that series) of, and any accrued and unpaid interest on, all debt
securities of that series to be due and payable immediately. However, at any
time after a declaration of acceleration with respect to debt securities of any
series has been made, but before a judgment or decree based on that acceleration
has been obtained, the holders of a majority in principal amount of the
outstanding debt securities of that series may, under certain circumstances,
rescind and annul that acceleration. For information as to waiver of defaults,
see "Modification and Waiver" below.
The indenture will provide that, subject to the duty of the trustee during
an Event of Default to act with the required standard of care, 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 those
holders shall have offered to the trustee reasonable security or indemnity.
Subject to certain provisions, including those requiring security or
indemnification of the trustee, the holders of a majority in principal amount of
the outstanding debt securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the trustee, with
respect to the debt securities of that series.
We will be required to furnish to the trustee under the indenture annually
a statement as to our performance of our obligations under the indenture and as
to any default in our performance.
Modification and Waiver
Subject to certain exceptions, the indenture will provide that we and the
trustee may amend the indenture or the debt securities with the written consent
of the holders of a majority in principal amount of the then outstanding debt
securities of each series affected by the amendment with each series voting as a
separate class. The holders of a majority in principal amount of the then
outstanding debt securities of any series may also waive compliance by us with
certain restrictive provisions of the indenture with respect to the debt
securities of that series; provided, however, that, except as otherwise
specified in the applicable prospectus supplement, without the consent of each
holder of debt securities affected, an amendment or waiver may not, among other
things:
o reduce the percentage of the principal amount of debt securities whose
holders must consent to an amendment or waiver;
o reduce the rate or change the time for payment of interest on any debt
security, including default interest;
o reduce the principal of or premium, if any, or change the fixed maturity
of any debt security, or reduce the amount of, or postpone the date fixed for,
redemption or the payment of any sinking fund or analogous obligation with
respect to any series of debt securities;
o make any debt security payable in currency other than that stated in the
debt security;
o make any change in the provisions concerning waivers of default or Events
of Default by holders or the rights of holders to recover the principal of,
premium, if any, or interest on, any debt security;
<PAGE>
o waive a default in the payment of the principal of, or interest on, any
debt security, except as otherwise provided in the indenture; or
o reduce the principal amount of original issue discount securities payable
upon acceleration of the maturity thereof.
We and the trustee may amend the indenture or the debt securities without
notice to or the consent of any holder of a debt security to, among other
things:
o cure any ambiguity, defect or inconsistency;
o comply with the indenture's provisions with respect to successor
corporations;
o comply with any requirements of the Commission in connection with the
qualification of the indenture under the Trust Indenture Act;
o provide for uncertificated debt securities in addition to or in place of
certificated debt securities;
o add to, change or eliminate any of the provisions of the indenture in
respect of one of more series of debt securities, provided, however, that any
addition, change or elimination (a) shall neither (i) apply to any debt security
of any series created prior to the execution of such amendment and entitled to
the benefit of such provision, nor (ii) modify the rights of a holder of any
such debt security with respect to such provision, or (b) shall become effective
only when there is no outstanding debt security of any series created prior to
such amendment and entitled to the benefit of such provision;
o make any change that does not adversely affect in any material respect
the interest of any holder; or
o establish additional series of debt securities as permitted by the
indenture.
The holders of a majority in principal amount (or principal amount at
maturity of securities issued at a discount) of the then outstanding debt
securities of any series, by notice to us and to the trustee, may waive an
existing default or Event of Default and its consequences except a default or
Event of Default in the payment of the principal of (or premium, if any), or any
interest on, any debt security with respect to the debt securities of that
series or in the payment of any sinking fund installment with respect to the
debt securities of that series or in respect of any provision in the indenture
which cannot be modified or amended without the consent of the holder of each
outstanding debt security of such series affected; provided, however, that the
holders of a majority in principal amount of the outstanding debt securities of
any series may rescind an acceleration and its consequences, including any
related payment default that resulted from such acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. Unless otherwise specified in the applicable prospectus
supplement, the indenture will provide that we may be discharged from any and
all obligations in respect of the debt securities of any series (except for
certain obligations to register the transfer or exchange of debt securities of
that series, to replace stolen, lost or mutilated debt securities of that
series, and to maintain paying agencies) upon the deposit with the trustee, in
trust, of money and/or U.S. government obligations, that, through the payment of
interest and principal in respect thereof in accordance with their terms, will
provide money in an amount sufficient in the opinion of a nationally recognized
firm of independent public accountants to pay and discharge each installment of
principal, premium, if any, and interest, if any, on and any mandatory sinking
fund payments in respect of the debt securities of that series on the stated
maturity of those payments or other redemption date in accordance with the terms
of the indenture and the debt securities.
<PAGE>
This discharge may occur only if, among other things, we have received
from, or there has been published by, the United States Internal Revenue Service
a ruling, or, since the date of execution of the indenture, there has been a
change in the applicable United States federal income tax law, in either case to
the effect that holders of the debt securities of such series will not recognize
income, gain or loss for United States federal income tax purposes as a result
of the deposit, defeasance and discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if the deposit, defeasance and discharge had
not occurred.
The applicable prospectus supplement will describe any other conditions we
must meet in order to legally defease a particular class or series of debt
securities.
Defeasance of Certain Covenants. Unless otherwise specified in the
applicable prospectus supplement, the indenture will provide that, upon
compliance with certain conditions, we may omit to comply with the restrictive
covenants contained in the indenture, as well as any additional covenants or
Events of Default contained in a supplement to the indenture, a Board Resolution
or an Officers' Certificate delivered pursuant to the indenture. The conditions
include:
o depositing with the trustee money and/or U.S. government obligations,
that, through the payment of interest and principal in respect thereof
in accordance with their terms, will provide money in an amount
sufficient in the opinion of a nationally recognized firm of
independent public accountants to pay principal, premium, if any, and
interest, if any, on and any mandatory sinking fund payments in
respect of the debt securities of that series on the stated maturity
of those payments or other redemption date in accordance with the
terms of the indenture and the debt securities; and
o delivering to the trustee an opinion of counsel to the effect that the
holders of the debt securities of that series will not recognize
income, gain or loss for United States federal income tax purposes as
a result of that deposit and related covenant defeasance and will be
subject to United States federal income tax in the same amount and in
the same manner and at the same times as would have been the case if
the deposit and related covenant defeasance had not occurred.
The applicable prospectus supplement will describe any additional
conditions we must meet in order to defease the covenants applicable to a
particular class or series of debt securities.
Defeasance of Certain Covenants and Events of Default. In the event we
exercise our option to omit to comply with certain covenants contained in the
indenture with respect to any series of debt securities and the debt securities
of that series are declared due and payable because of the occurrence of any
Event of Default, the amount of money and/or U.S. government obligations on
deposit with the trustee will be sufficient to pay amounts due on the debt
securities of that series at the time of their stated maturity but may not be
sufficient to pay amounts due on the debt securities of that series at the time
of the acceleration resulting from the Event of Default. However, we will remain
liable for those payments.
Satisfaction and Discharge
The indentures will, upon a written request or order signed by one of our
designated officers and delivered to the trustee, cease to be of further effect
with respect to any series of debt securities, except as to any surviving rights
of registration of transfer or exchange or conversion of debt securities of that
series expressly provided for, and the trustee will be required to execute
proper instruments acknowledging satisfaction and discharge of such indenture as
to that series when either:
<PAGE>
o we have delivered to the trustee for cancellation all debt securities of
that series previously authenticated and delivered, other than:
o debt securities that have been destroyed, lost or stolen
and which have been replaced or paid, as provided in the
indentures, and
o debt securities for which money sufficient to make all
payment on the debt securities has previously been deposited in
trust with the trustee or any paying agent or segregated and held
in trust by us with any remaining amounts to thereafter be repaid
to us, as provided in the indentures, or
o all debt securities, other than convertible debt securities, of the
series:
o have become due and payable, or
o will become due and payable at their stated maturity
within one year, or
o if redeemable at our option, are to be called for
redemption within one year under arrangements reasonably
satisfactory to the trustee for the giving of notice of
redemption by the trustee in the name, and at our expense; and
o we irrevocably deposit or cause to be deposited with the
trustee as trust funds in trust an amount of money or government
obligations sufficient to pay and discharge the entire
indebtedness on those debt securities not previously delivered to
the trustee for cancellation, including all principal of and any
premium and installments of interest to the date of such deposit
in the case of debt securities which have become due and payable
or to the stated maturity or redemption of the debt securities,
as applicable.
In addition, in order to satisfy and discharge the securities, we will be
required to:
o pay or cause to be paid all other sums payable under the debt securities
by us; and
o deliver an officers' certificate and an opinion of counsel to the
trustee, each stating that all conditions precedent provided for relating to the
satisfaction and discharge of the indentures as to such series have been
satisfied.
Regarding the Trustees
The indenture and provisions of the Trust Indenture Act incorporated by
reference in the indenture contain certain limitations on the rights of the
trustee, should it become our creditor, to obtain payment of claims in certain
cases, or to realize on certain property received in respect of any claim, as
security or otherwise. The trustee and its affiliates may engage in, and will be
permitted to continue to engage in, other transactions with us and our
affiliates; provided, however, that if it acquires any conflicting interest (as
defined in the Trust Indenture Act), it must eliminate that conflict or resign.
<PAGE>
The holders of a majority in principal amount of the then outstanding debt
securities of any series will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
trustee. The Trust Indenture Act and the indenture provide that in case an Event
of Default shall occur and be continuing, the trustee will be required, in the
exercise of its rights and powers, to use the degree of care and skill of a
prudent person in the conduct of that person's affairs. Subject to this
provision, 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 the debt
securities issued thereunder, unless they have offered to the trustee indemnity
satisfactory to it.
DESCRIPTION OF PREFERRED STOCK
The following description summarizes certain general terms and provisions
of the preferred stock to which any prospectus supplement may relate. When we
offer to sell a particular series of preferred stock, we will describe the
specific terms of the series in a supplement to this prospectus. This summary
and the summary included in the relevant prospectus supplement are not complete.
For more detail you should refer to the applicable provisions in our amended
certificate of incorporation, as amended, and the certificate of designations
relating to each series of preferred stock. Our amended certificate of
incorporation, as amended, and the certificate of designations will be filed
with the Commission and incorporated by reference in the registration statement
of which this prospectus is a part at or prior to the time of the issuance of
the applicable series of the preferred stock.
General
As of February 1, 2000, we have authority to issue 1,000,000 shares of
preferred stock, $.01 par value per share. As of December 31, 1999, we had
130,000 shares of preferred stock outstanding, of which 70,000 shares were
shares of Series A Preferred Stock and 60,000 shares were shares of Series B
Preferred Stock.
Prior to issuance of shares of each series, the Board of Directors is
required by the General Corporation Law of the State of Delaware, the "Delaware
Code", and our amended certificate of incorporation to adopt resolutions and
file a certificate of designation with the Secretary of State of the State of
Delaware, fixing for each class or series the designations, powers, preferences
and rights of the shares of that class or series and its qualifications,
limitations or restrictions, including, but not limited to, dividend rights,
dividend rate or rates, conversion rights, voting rights, rights and terms of
redemption, including sinking fund provisions, the redemption price or prices,
and the liquidation preferences as are permitted by the Delaware Code. Our Board
of Directors could authorize the issuance of shares of preferred stock with
terms and conditions which could have the effect of discouraging a takeover or
other transaction which holders of some, or a majority, of such shares might
believe to be in their best interests or in which holders of some, or a
majority, of those shares might receive a premium for their shares over the
then-market price of those shares.
Subject to limitations prescribed by the Delaware Code, our amended
certificate of incorporation and our bylaws, our Board of Directors is
authorized without further stockholder action to provide for the issuance of up
to 870,000 shares of preferred stock, in one or more series, with the voting
powers, full or limited, and with the designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions, as shall be stated in the resolution or resolutions providing
for the issuance of a series of stock adopted, at any time or from time to time,
by the Board of Directors. As used in this prospectus the term "Board of
Directors" includes any duly authorized committee of the Board of Directors.
<PAGE>
The preferred stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in a prospectus
supplement relating to a particular series of the preferred stock. Reference is
made to the prospectus supplement relating to the particular series of the
preferred stock offered thereby for additional specific terms, including:
o the designation and stated value per share of the preferred stock and the
number of shares offered;
o the amount of liquidation preference per share;
o the initial public offering price at which the preferred stock will be
issued;
o the dividend rate or method of calculation, the dates on which dividends
shall be payable and the dates from which dividends shall commence to cumulate,
if any;
o any redemption or sinking fund provisions;
o any conversion or exchange rights; and
o any additional voting, dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and restrictions.
The preferred stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. The rights of the holders of each series of the
preferred stock will be subordinate to those of our general creditors.
Dividend Rights
Except as otherwise set forth in the applicable prospectus supplement,
holders of the preferred stock of each series will be entitled to receive, when,
as and if declared by the Board of Directors, out of our funds legally available
therefor, dividends on the dates and at the rates as set forth in, or as are
determined by the method described in, the applicable prospectus supplement. The
dividend rate may be fixed or variable or both. Dividends may be paid in cash,
in shares of our common stock, additional shares of preferred stock or
otherwise, as set forth in the applicable prospectus supplement. Each dividend
will be payable to the holders of record as they appear on our stock books on
the appropriate record dates, fixed by the Board of Directors, as specified in
the applicable prospectus supplement.
The dividends may be cumulative or noncumulative, as provided in the
applicable prospectus supplement. If the Board of Directors fails to declare a
dividend payable on a dividend payment date on any series of preferred stock for
which dividends are noncumulative, then the right to receive a dividend in
respect of the dividend period ending on that dividend payment date will be
lost, and we will have no obligation to pay any dividend for that period,
whether or not dividends on that series are declared payable on any future
dividend payment dates. Dividends on the shares of each series of preferred
stock for which dividends are cumulative will accrue from the date on which we
initially issues shares of that series.
Unless otherwise specified in the applicable prospectus supplement, so
long as the shares of any series of the preferred stock are outstanding, unless:
(1) full dividends, including if the preferred stock is cumulative,
dividends for prior dividend periods, have been paid or declared and
set apart for payment on all outstanding shares of the preferred
stock of that series and all other classes and series of our
preferred stock (other than Junior Stock (as defined below)); and
(2) we are not in default or in arrears with respect to the mandatory or
optional redemption or mandatory repurchase or other mandatory
retirement of, or with respect to any sinking or other analogous
funds for, any shares of preferred stock of that series or any
shares of any of our other preferred stock of any class or series
(other than Junior Stock),
<PAGE>
we may not declare any dividends on any shares of our common stock or any other
stock ranking as to dividends or distributions of assets junior to that series
of preferred stock (the common stock and any such other stock being herein
referred to as "Junior Stock"), or make any payment on account of, or set apart
money for, the purchase, redemption or other retirement of, or for a sinking or
other analogous fund for, any shares of Junior Stock or make any distribution in
respect thereof, whether in cash or property or in obligations of our stock,
other than in Junior Stock which is neither convertible into, nor exchangeable
or exercisable for, any of our securities other than Junior Stock.
Liquidation Preferences
Unless otherwise specified in the applicable prospectus supplement, in the
event that we voluntarily or involuntarily liquidate, dissolve or wind up, the
holders of each series of preferred stock will be entitled to receive out of our
assets available for distribution to stockholders, before any distribution of
assets is made to the holders of Junior Stock, the amount set forth in the
applicable prospectus supplement. If, upon any voluntary or involuntary
liquidation, dissolution or winding up, the amounts payable with respect to the
preferred stock of any series and any other shares of our preferred stock
(including any other series of the preferred stock) ranking as to any
distribution on a parity with that series are not paid in full, those holders
will share ratably in any such distribution of our assets in proportion to the
full respective preferential amounts to which they are entitled. After payment
to those holders of the full preferential amounts of the liquidating
distribution to which they are entitled, unless otherwise provided in the
applicable prospectus supplement, the holders of each such series of the
preferred stock will be entitled to no further participation in any distribution
of our assets.
Redemption
A series of the preferred stock may be redeemable, in whole or in part, at
our option, and may be subject to mandatory redemption pursuant to a sinking
fund or otherwise, in each case upon terms, at the times and at the redemption
prices set forth in the applicable prospectus supplement. Shares of preferred
stock which we redeem will be restored to the status of authorized but unissued
shares of preferred stock.
If fewer than all of the outstanding shares of a series of preferred stock
are to be redeemed, whether by mandatory or optional redemption, the number of
shares to be redeemed will be determined by lot or pro rata, subject to rounding
to avoid fractional shares, as may be determined by us or by any other method we
determine in our sole discretion to be equitable. From and after the redemption
date, unless we fail to pay the redemption price plus accumulated and unpaid
dividends, if any, dividends will cease to accumulate on the shares of the
preferred stock called for redemption and all rights of the holders of the
preferred stock, except the right to receive the redemption price plus
accumulated and unpaid dividends, if any, will cease.
Unless otherwise specified in the applicable prospectus supplement, so
long as any dividends on shares of any series of the preferred stock or any
other series of our preferred stock ranking equally as to dividends and
distribution of assets with that series are in arrears, no shares of that series
of the preferred stock or such other series of our preferred stock will be
redeemed, whether by mandatory or optional redemption, unless all of those
shares are simultaneously redeemed. We will not purchase or otherwise acquire
any of these shares; provided, however, that the foregoing will not prevent the
purchase or acquisition of those shares pursuant to a purchase or exchange offer
made on the same terms to holders of all those shares outstanding.
<PAGE>
Conversion and Exchange Rights
The terms, if any, on which shares of preferred stock of any series may be
exchanged for or converted into shares of common stock, another series of
preferred stock or any other security will be set forth in the applicable
prospectus supplement. Those terms may include provisions for conversion, either
mandatory, at the option of the holder or at our option, in which case the
number of shares of common stock, the shares of another series of preferred
stock or the amount of any other securities to be received by the holders of
preferred stock would be calculated as of a time and in the manner stated in the
prospectus supplement.
Voting Rights
Except as indicated below or in the applicable prospectus supplement, or
except as expressly required by the laws of the State of Delaware or other
applicable law, the holders of the preferred stock will not be entitled to vote.
Except as indicated in the applicable prospectus supplement, each share will be
entitled to one vote on matters on which holders of a particular series of the
preferred stock are entitled to vote. However, as more fully described below
under "Depositary Shares," if we elect to issue depositary shares representing a
fraction of a share of a series of preferred stock, each depositary share will,
in effect, be entitled to that fraction of a vote, rather than a full vote.
Because each full share of any series of preferred stock shall be entitled to
one vote, the voting power of that series, on matters on which holders of that
series and holders of other series of preferred stock are entitled to vote as a
single class, shall depend on the number of shares in that particular series,
not the aggregate liquidation preference or initial offering price of the shares
of that particular series of preferred stock.
Depositary Shares
General. We may, at our option, elect to offer fractional shares of
preferred stock, rather than full shares of preferred stock. If we exercise this
option, we will issue to the public receipts for depositary shares. Each
depositary share will represent a fraction of a share of a particular series of
preferred stock. The particular fraction will be set forth in the applicable
prospectus supplement.
The shares of any series of preferred stock represented by depositary
shares will be deposited under a deposit agreement between us and a bank or
trust company selected by us having its principal office in the United States
and having a combined capital and surplus of at least $50,000,000. We refer to
this bank or trust company as the "depositary bank." Subject to the terms of the
deposit agreement, each owner of a depositary share will be entitled, in
proportion to the applicable fraction of a share of preferred stock represented
by a depositary share, to all the rights and preferences of the preferred stock
represented thereby, including dividend, voting, redemption and liquidation
rights.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Those depositary receipts will be distributed
to those persons purchasing the fractional shares of preferred stock in
accordance with the terms of the particular offering. If depositary shares are
issued, copies of the forms of deposit agreement and depositary receipt will be
incorporated by reference in the registration statement.
Pending the preparation of definitive engraved depositary receipts, the
depositary bank may, upon our written order, issue temporary depositary receipts
substantially identical to (and entitling the holders thereof to all the rights
pertaining to) the definitive depositary receipts but not in definitive form.
Definitive depositary receipts will be prepared thereafter without unreasonable
delay, and temporary depositary receipts will be exchangeable for definitive
depositary receipts at our expense.
<PAGE>
Withdrawal of Preferred Stock. Upon surrender of the depositary receipts
to the depositary bank, the owner of the depositary shares evidenced by the
depositary receipts is entitled to delivery at that office of the number of
whole shares of preferred stock represented by the depositary shares. If the
depositary receipts delivered by the holder evidence a number of depositary
shares in excess of the number of depositary shares representing the number of
whole shares of preferred stock to be withdrawn, the depositary bank will
deliver to the holder at the same time a new depositary receipt evidencing the
excess number of depositary shares. Owners of depositary shares will be entitled
to receive only whole shares of preferred stock. In no event will fractional
shares of preferred stock (or cash in lieu thereof) be distributed by the
depositary bank. Consequently, a holder of a depositary receipt representing a
fractional share of preferred stock would be able to liquidate his position only
by sale to a third party (in a public trading market transaction or otherwise),
unless the depositary shares are redeemed by us or converted by the holder.
Dividends and Other Distributions. The depositary bank will distribute all
cash dividends or other cash distributions received in respect of the preferred
stock to the record holders of depositary shares relating to the preferred stock
in proportion to the number of depositary shares owned by the record holders.
In the event of a distribution other than in cash, the depositary bank
will distribute property received by it to the record holders of depositary
shares entitled thereto, unless the depositary bank determines that it is not
feasible to make the distribution, in which case the depositary bank may, with
our approval, sell the property and distribute the net proceeds from the sale to
those holders.
Redemption of Depositary Shares. If a series of preferred stock
represented by depositary shares is subject to redemption, the depositary shares
will be redeemed from the proceeds received by the depositary bank resulting
from the redemption, in whole or in part, of that preferred stock. The
redemption price per depositary share will be equal to the applicable fraction
of the redemption price per share payable with respect to that series of
preferred stock. Whenever we redeem shares of preferred stock held by the
depositary bank, the depositary bank will redeem as of the same redemption date
the number of depositary shares representing the shares of preferred stock so
redeemed. If fewer than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot or pro rata as may be
determined by the depositary bank.
Voting the Preferred Stock. Upon receipt of notice of any meeting at which
the holders of preferred stock are entitled to vote, the depositary bank will
mail the information contained in the notice of meeting to the record holders of
the depositary shares relating to that preferred stock. Each record holder of
those depositary shares on the record date (which will be the same date as the
record date for the preferred stock) will be entitled to instruct the depositary
bank as to the exercise of the voting rights pertaining to the amount of
preferred stock represented by that holder's depositary shares. The depositary
bank will endeavor, insofar as practicable, to vote the amount of preferred
stock represented by those depositary shares in accordance with those
instructions, and we will agree to take all action that may be deemed necessary
by the depositary bank in order to enable the depositary bank to do so. The
depositary bank may abstain from voting shares of preferred stock to the extent
it does not receive specific instructions from the holders of depositary shares
representing that preferred stock.
Amendment and Termination of the Depositary Agreement. The form of
depositary receipt evidencing the depositary shares and any provision of the
deposit agreement may at any time be amended by agreement between us and the
depositary bank. However, any amendment that materially and adversely alters the
rights of the holders of depositary shares will not be effective unless the
amendment has been approved by the holders of at least a majority of the
depositary shares then outstanding. The deposit agreement may be terminated by
us or the depositary bank only if:
o all outstanding depositary shares have been redeemed, or
o there has been a final distribution in respect of the preferred stock
in connection with our liquidation, dissolution or winding up and the
distribution has been distributed to the holders of depositary
receipts.
<PAGE>
Charges of Depositary Bank. We will pay all transfer and other taxes and
governmental charges arising solely from the existence of the depositary
arrangements. We will pay charges of the depositary bank in connection with the
initial deposit of the preferred stock and any redemption of the preferred
stock. Holders of depositary receipts will pay other transfer taxes and other
taxes and governmental charges and any other charges, including any fee for the
withdrawal of shares of preferred stock upon surrender of depositary receipts,
as are expressly provided in the deposit agreement to be for their accounts.
Miscellaneous. The depositary bank will forward to holders of depositary
receipts all reports and communications from us that are delivered to the
depositary bank and that we are required to furnish to the holders of preferred
stock.
Neither we nor the depositary bank will be liable if either one of us is
prevented or delayed by law or any circumstance beyond its control in performing
its obligations under the deposit agreement. Our obligations and the obligations
of the depositary bank under the deposit agreement will be limited to
performance in good faith of our respective duties thereunder and neither we nor
the depositary bank will be obligated to prosecute or defend any legal
proceeding in respect of any depositary shares or preferred stock unless
satisfactory indemnity is furnished. We and the depositary bank may rely upon
written advice of counsel or accountants, or upon information provided by
persons presenting preferred stock for deposit, holders of depositary receipts
or other persons believed to be competent and on documents believed to be
genuine.
Resignation and Removal of Depositary Bank. The depositary bank may resign
at any time by delivering to us notice of its election to do so, and we may at
any time remove the depositary bank. Any resignation or removal will take effect
upon the appointment of a successor depositary bank and its acceptance of the
appointment. The successor depositary bank must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
DESCRIPTION OF COMMON STOCK
As of February 1, 2000, we have authority to issue 40,000,000 shares of
common stock. At the close of business on February 1, 2000, we had outstanding
14,527,608 shares of common stock, including 25 treasury shares. All outstanding
shares of common stock are fully paid and nonassessable.
Each holder of common stock is entitled to one vote for each share on
matters voted upon by stockholders. A majority vote is required for all action
to be taken by stockholders, except in the following situations:
o directors must be elected by a plurality of votes cast at the annual
meeting of stockholders;
o subject to certain limited exceptions, under Delaware law any director
may be removed from office by the vote of stockholders representing not less
than two-thirds of the voting power of the issued and outstanding common stock.
If we liquidate, dissolve or wind-up, the holders of common stock are entitled
to share equally and ratably in our assets, if any, remaining after the payment
of all of our debts and liabilities and the liquidation preference of any
outstanding preferred stock. The common stock has no preemptive rights, no
cumulative voting rights and no redemption, sinking fund or conversion
provisions.
Holders of common stock are entitled to receive dividends when as, and if
declared by the Board of Directors out of funds legally available therefor,
subject to the dividend and liquidation rights of any preferred stock that may
be issued and subject to any dividend restrictions that may be contained in
future credit facilities. No dividend or other distribution, including
redemptions or repurchases of shares of capital stock, may be made if after
giving effect to the distribution, we would not be able to pay our debts as they
become due in the usual course of business, or our total assets would be less
than the sum of our total liabilities plus the amount that would be needed, if
we were to be dissolved at the time of distribution, to satisfy the preferential
rights upon dissolution of stockholders whose preferential rights are superior
to those receiving the distribution.
<PAGE>
DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt securities, or "debt warrants," as
well as warrants to purchase preferred stock or common stock, or "equity
warrants." We refer to debt warrants and equity warrants collectively as
"warrants." Warrants may be issued independently or together with any securities
and may be attached to or separate from those securities. We will issue warrants
under warrant agreements to be entered into between us and a bank or trust
company, as warrant agent. When we issue warrants, we will describe the specific
terms of the warrants in a prospectus supplement.
Debt Warrants
The applicable prospectus supplement will describe the terms of debt
warrants offered thereby, the warrant agreement relating to the debt warrants
and the debt warrant certificates representing the debt warrants, including the
following:
o the title of the debt warrants;
o the aggregate number of debt warrants;
o the price or prices at which the debt warrants will be issued;
o the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants, and the procedures
and conditions relating to the exercise of the debt warrants;
o the designation and terms of any related debt securities with which the
debt warrants are issued, and the number of the debt warrants issued with each
debt security;
o the date, if any, on and after which the debt warrants and the related
debt securities will be separately transferable;
o the principal amount of debt securities purchasable upon exercise of each
debt warrant;
o the date on which the right to exercise the debt warrants will commence,
and the date on which those rights will expire;
o the maximum or minimum number of debt warrants which may be exercised at
any time;
o information with respect to book-entry procedures, if any;
o a discussion of any material federal income tax considerations; and
o any other terms of the debt warrants and terms, procedures and
limitations relating to the exercise of the debt warrants.
Debt warrant certificates will be exchangeable for new debt warrant
certificates of different denominations. Debt warrants may be exercised at the
corporate trust office of the warrant agent or any other office indicated in the
prospectus supplement. Prior to the exercise of their debt warrants, holders of
debt warrants will not have any of the rights of holders of the debt securities
purchasable upon the exercise and will not be entitled to payment of principal
of or premium, if any, or interest, if any, on the debt securities purchasable
upon the exercise.
Equity Warrants
The applicable prospectus supplement will describe the terms of equity
warrants offered thereby, the warrant agreements relating to the equity warrants
and the equity warrant certificates representing the equity warrants, including
the following:
<PAGE>
o the title of the equity warrants;
o the securities (i.e., preferred stock or common stock) for which the
equity warrants are exercisable;
o the price or prices at which the equity warrants will be issued;
o if applicable, the designation and terms of the preferred stock or common
stock with which the equity warrants are issued, and the number of equity
warrants issued with each share of preferred stock or common stock;
o if applicable, the date on and after which the equity warrants and the
related preferred stock or common stock will be separately transferable;
o the date on which the right to exercise the equity warrants will
commence, and the date on which those rights will expire;
o the maximum or minimum number of equity warrants which may be exercised
at any time;
o information with respect to book-entry procedures, if any;
o if applicable, a discussion of any material federal income tax
considerations; and
o any other terms of the equity warrants, including terms, procedures and
limitations relating to the exchange and exercise of the equity warrants.
Unless otherwise provided in the applicable prospectus supplement, holders
of equity warrants will not be entitled, by virtue of being such holders, to
vote, consent, receive dividends, receive notice as stockholders with respect to
any meeting of stockholders for the election of our directors or any other
matter, or to exercise any rights whatsoever as stockholders.
Except as set forth in the applicable prospectus supplement, the exercise
price payable and the number of shares of common stock or preferred stock
purchasable upon the exercise of each equity warrant will be subject to
adjustment in certain events, including the issuance of a stock dividend to
holders of common stock or preferred stock or a stock split, reverse stock
split, combination, subdivision or reclassification of common stock or preferred
stock. In lieu of adjusting the number of shares of common stock or preferred
stock purchasable upon exercise of each equity warrant, we may elect to adjust
the number of equity warrants. Unless otherwise provided in the applicable
prospectus supplement, no adjustments in the number of shares purchasable upon
exercise of the equity warrants will be required until cumulative adjustments
require an adjustment of at least 1% thereof. We may, at our option, reduce the
exercise price at any time. No fractional shares will be issued upon exercise of
equity warrants, but we will pay the cash value of any fractional shares
otherwise issuable. Notwithstanding the foregoing, except as otherwise provided
in the applicable prospectus supplement, in case of any consolidation, merger,
or sale or conveyance of our property as an entirety or substantially as an
entirety, the holder of each outstanding equity warrant shall have the right to
the kind and amount of shares of stock and other securities and property
(including cash) receivable by a holder of the number of shares of common stock
or preferred stock into which the equity warrant was exercisable immediately
prior to the particular triggering event.
<PAGE>
Exercise of Warrants
Each warrant will entitle the holder to purchase the principal amount, or
number of, securities at the exercise price as shall in each case be set forth
in, or be determinable as set forth in, the applicable prospectus supplement.
Warrants may be exercised at any time up to the close of business on the
expiration date set forth in the prospectus supplement relating to the warrants
offered thereby. After the close of business on the expiration date, unexercised
warrants will become void.
Warrants may be exercised as set forth in the applicable prospectus
supplement. Upon receipt of payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the warrant agent
or any other office indicated in the applicable prospectus supplement, we will,
as soon as practicable, forward the securities purchasable upon that exercise.
If less than all of the warrants represented by a particular warrant certificate
are exercised, a new warrant certificate will be issued for the remaining
warrants.
DESCRIPTION OF UNITS
We may issue units consisting of two or more other constituent securities.
These units may be issuable as, and for a specified period of time may be
transferable as, a single security only, as distinguished from the separate
constituent securities comprising such units. When we issue units, we will
describe the specific terms of the units in a prospectus supplement including
the following:
o the title of any series of units;
o identification and description of the separate constituent securities
comprising the units;
o the price or prices at which the units will be issued;
o if applicable, the date on and after which the constituent securities
comprising the units will become separately transferable;
o information with respect to book-entry procedures, if any;
o a discussion of any material federal income tax considerations; and
o any other terms of the units and their constituent securities.
PLAN OF DISTRIBUTION
We may sell the securities for public offering to underwriters or dealers,
which may be a group of underwriters represented by one or more managing
underwriters, or through such firms or other firms acting alone or through
dealers. We may also sell the securities directly or through agents to
investors. The names of any agents, dealers or managing underwriters, and of any
underwriters, involved in the sale of the securities in respect of which this
prospectus is being delivered, the applicable agent's commission, dealer's
purchase price or underwriter's discount and the net proceeds to us from the
sale will also be set forth in the prospectus supplement.
Any underwriting compensation which we pay to underwriters or agents in
connection with the offering of securities and any discounts, concessions or
commissions allowed by underwriters to participating dealers will be set forth
in the prospectus supplement. Underwriters, dealers and agents participating in
the distribution of the securities may be deemed to be "underwriters" within the
meaning of the Securities Act, and any discounts and commissions received by
them and any profit realized by them on resale of the securities may be deemed
to be underwriting discounts and commissions under the Securities Act.
<PAGE>
If any or underwriters are utilized in the sale of the securities, we will
execute an underwriting agreement or a purchase agreement with those
underwriters at the time an agreement for the sale is reached. The underwriting
agreement or purchase agreement will provide that the obligations of the
underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of securities will be obligated to purchase
all such securities if any are purchased. In connection with the sale of
securities, underwriters may be deemed to have received compensation from us in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of securities for whom they may act as agent.
Underwriters may sell securities to or through dealers, and those dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agent. Under the relevant underwriting agreements or purchase agreements,
underwriters, dealers and agents who participate in the distribution of the
securities, may be entitled to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act or contribution with
respect to payments that the underwriters, dealers or agents may be required to
make in respect thereof. The underwriters with respect to an underwritten
offering of securities will be set forth in the applicable prospectus supplement
and, if an underwriting syndicate is used, the managing underwriter or
underwriters will be set forth on the cover of the prospectus supplement.
If so indicated in the applicable prospectus supplement, we will authorize
agents, underwriters or dealers to solicit offers by certain purchasers to
purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery. These contracts will be subject only to those conditions
set forth in the applicable prospectus supplement, and the prospectus supplement
will set forth the commissions payable for the solicitation of these offers.
Agents and underwriters will have no responsibility in respect of the
delivery or performance of delayed delivery contracts.
The securities may or may not be listed on a national securities exchange
or a foreign securities exchange.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for us and our subsidiaries and
the trustees in the ordinary course of business.
LEGAL MATTERS
Latham & Watkins of New York, New York will issue an opinion to us about
certain legal matters relating to the securities.
EXPERTS
Our financial statements as of March 31, 1999 and March 31, 1998 and for
each year in the two-year period ended March 31, 1999, included or incorporated
by reference in our Annual Report on Form 10-KSB for the year ended March 31,
1999 have been audited by Haskell & White LLP, independent auditors, as set
forth in their reports thereon included or incorporated by reference therein and
incorporated herein by reference. Such reports are incorporated herein by
reference in reliance upon such reports given upon the authority of such firm as
experts in accounting and auditing.
<PAGE>
LOGO
$450,000,000
U.S. Wireless Corporation
------------------
PROSPECTUS
------------------
_____________, 2000
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses to be paid by the Company in connection with the distribution
of the securities being registered are as set forth in the following table:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission Fee.......................................................... $118,000
*Rating Agency Fees............................................................................... 100,000
*Legal Fees and Expenses.......................................................................... 150,000
*Accounting Fees and Expenses..................................................................... 75,000
*Printing Expenses................................................................................ 30,000
*Blue Sky Fees.................................................................................... 5,000
*Trustee/Issuing & Paying Agent Fees and Expenses................................................. 10,000
*Transfer Agent Fees & Expenses................................................................... 5,000
*Miscellaneous.................................................................................... 9,000
*Total......................................................................................... $502,000
========
</TABLE>
- -----------
* Estimated.
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL"), Article
Fifth of the Amended and Restated Certificate of Incorporation and Article
Twelfth of the Bylaws provide for indemnification of U.S. Wireless Corporation's
directors and officers in a variety of circumstances, which may include
liabilities under the Securities Act of 1933, as amended (the "Securities Act").
Article Twelfth provides that U.S. Wireless Corporation shall indemnify, to the
full extent permitted by the laws of Delaware, each person made or threatened to
be made a party to any action or proceeding and may advance or reimburse
expenses incurred in defending any proceeding for which such right to
indemnification is applicable provided that the indemnitee (i) provides U.S.
Wireless Corporation with an undertaking to repay all amounts advanced if it is
ultimately determined that such person is not entitled to indemnification or, if
indemnification is granted, to the extent the expenses advanced or reimbursed
exceed the amount to which such person is entitled and (ii) cooperates in good
faith with any request by U.S. Wireless Corporation that common counsel be
utilized.
The general effect of the provisions in U.S. Wireless Corporation's
Amended and Restated Certificate of Incorporation, Bylaws and the DGCL is to
provide that U.S. Wireless Corporation shall indemnify its directors and
officers against all liabilities and expenses actually and reasonably incurred
in connection with the defense or settlement of any judicial or administrative
proceedings in which they have become involved by reason of their status as
corporate directors or officers, if they acted in good faith and in the
reasonable belief that their conduct was neither unlawful (in the case of
criminal proceedings) nor inconsistent with the best interests of U.S. Wireless
Corporation. With respect to legal proceedings by or in the right of U.S.
Wireless Corporation in which a director or officer is adjudged liable for
improper performance of his duty to U.S. Wireless Corporation or another
enterprise for which such person served in a similar capacity at the request of
U.S. Wireless Corporation, indemnification is limited by such provisions to that
amount which is permitted by the court.
Item 16. Exhibits
See Exhibit Index.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
<PAGE>
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the information required to be included in a
post-effective amendment by paragraphs (1)(i) and(1)(ii) above may be contained
in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act and (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) To file an application for the purpose of determining the eligibility
of the trustee to act under Subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No.
2 to the Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized in the City of San Ramon, State of
California, on the 16th day of March, 2000.
U.S. WIRELESS CORPORATION
By \s\ Dr. Oliver Hilsenrath
Name: Dr. Oliver Hilsenrath
Title: Chief Executive Officer, and Director
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
\s\ Dr. Oliver Hilsenrath Chief Executive Officer, President and March 16, 2000
(Dr. Oliver Hilsenrath) Director (Principal Executive
Officer, Principal Financial Officer
and Principal Accounting Officer)
\s\ * Director March 16, 2000
(Louis Golm)
\s\ * Director March 16, 2000
(Dennis Francis)
\s\ * Director March 16, 2000
(Barry West)
\s\ * Director March 16, 2000
(Irwin Gross)
</TABLE>
II-3
13
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
<S> <C>
*1.1 Form of Purchase Agreement
3.2.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by reference from the
3.2.2 Certificate of Amendment of the Certificate of Incorporation of the Company (incorporated by reference from
3.2.3 Certificate of Amendment of the Certificate of Incorporation of the Company (incorporated by reference from
3.4 By-Laws of the Company (incorporated by reference from the Company's Registration Statement on Form SB-2
3.4.1 Amendment to the By-Laws dated November 25, 1997 (incorporated by reference from the Company's Annual Report
3.5 Form of Common Stock Certificate (incorporated by reference from the 1994 Form SB-2).
3.6 Form of Series A Preferred Stock Certificate (incorporated by reference from the 1998 Form 10-KSB)
3.6.1 Form of Series B Preferred Stock Certificate (incorporated by reference from the 1999 Form 10-KSB)
*4.1 Form of Senior Indenture
*4.2 Form of Subordinated Indenture
**4.3 Form of Specimen of Senior Debt Security
**4.4 Form of Specimen of Subordinated Debt Security
*4.5 Form of Warrant Agreement
*4.8 Form of Warrant (included in Exhibit 4.5)
**4.9 Form of Deposit Agreement
*5.1 Opinion of Latham & Watkins as to validity of Offered Securities
*23.1 Consent of Haskell & White LLP
*23.2 Consent of Latham & Watkins (included in its opinion filed as Exhibit 5.1)
*24.1 Power of Attorney of Registrant's Director and Officers
**25.1 Statement of Eligibility of trustee
on Form T-1 with respect to indenture
</TABLE>
- --------------
* To be filed by amendment.
** To be incorporated by reference in connection with the offering of any
Offered Securities.
