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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 13, 2000
REGISTRATION NO. 333-44542
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE SHAW GROUP INC.
(and certain subsidiaries identified in footnote (*) below)
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
LOUISIANA 72-1106167
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
GARY P. GRAPHIA
8545 UNITED PLAZA BOULEVARD SECRETARY AND GENERAL COUNSEL
BATON ROUGE, LOUISIANA 70809 THE SHAW GROUP INC.
(225) 932-2500 8545 UNITED PLAZA BOULEVARD
(Address, including zip code, and telephone number, BATON ROUGE, LOUISIANA 70809
including area code, of Registrant's principal (225) 932-2500
executive offices) (Name, address, including zip code, and telephone
number, including area code, of agent for service)
</TABLE>
Copy to:
DAVID P. OELMAN
VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER
1001 FANNIN STREET
HOUSTON, TEXAS 77002-6760
(713) 758-2222
(713) 758-2346 (FAX)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
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, please 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. [ ]
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), may determine.
(footnote on next page)
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(*) The following subsidiaries of The Shaw Group are co-registrants and are
incorporated or organized in the states and have the I.R.S. Employer
Identification Numbers indicated: ACL Piping, Inc., a Texas corporation
(Applied For); Associated Valve, Inc., a Louisiana corporation (72-1326322);
B.F. Shaw, Inc., a South Carolina corporation (72-1106168); C.B.P.
Engineering Corp., an Illinois corporation (36-2860678); Eagle Industries,
Inc., a Louisiana corporation (72-1161160); Gulf Coast Equipment Rental,
Inc., a Louisiana corporation (72-1322884) IRM/NAPTech Joint Venture,
L.L.C., a Utah limited liability company (87-0558513); Lone Star
Fabricators, Inc., a Texas corporation (72-1156855); NAPTech PS Corporation,
a Utah corporation (87-0520790); Prospect Industries (Holdings) Inc., a
Delaware corporation (36-2860679); SAON Properties, Inc., a Louisiana
corporation (72-1362486); Secorp, Inc., a Louisiana corporation
(72-1212032); Shaw Alloy Piping Products, Inc., a Louisiana corporation
(72-0742268); Shaw Constructors, Inc., a Louisiana corporation (72-0944168);
Shaw Energy Services, Inc., a Louisiana corporation (72-1412476); Shaw
Fabricators, Inc., a Louisiana corporation (62-1718401); Shaw Fronek A/DE,
Inc., a Louisiana corporation (72-1326466); Shaw-Fronek Company, Inc., a
Delaware corporation (72-1266939); Shaw Fronek Fabrication, Inc., a Texas
corporation (72-1266940); Shaw Fronek Power Services, Inc., a Louisiana
corporation (72-1348302); Shaw FVF, Inc., a Louisiana corporation
(72-1135365); Shaw GRP of California, a California corporation (Applied
For); Shaw Industrial Supply Co., Inc., a Louisiana corporation (72-130139);
Shaw International, Inc., a Louisiana corporation (72-1237437); Shaw
Maintenance, Inc., a Louisiana corporation (72-7360032); Shaw Managed
Services, Inc., a Louisiana corporation (72-1345961); Shaw Manufacturing and
Services, Inc., a Louisiana corporation (72-1405018); Shaw NAPTech, Inc., a
Delaware corporation (87-0492102); Shaw Pipe Shields, Inc., a California
corporation (94-1682925); Shaw Process Fabricators, Inc., a Louisiana
corporation (72-1080769); Shaw Power Services, Inc., a Louisiana corporation
(72-1338077); Shaw Process and Industrial Group, Inc., a Louisiana
corporation (72-1405017); Shaw Services Inc., a Louisiana corporation
(72-1461804); Shaw Sunland Fabricators, Inc., a Louisiana corporation
(72-1229935); Shaw Word Industries Fabricators, Inc., an Oklahoma
corporation (73-1486975); Welding Technology & Supply, Inc., an Oklahoma
corporation (73-1503512); Worldwide Industrial Constructors Inc., a
Louisiana corporation (73-1349418); Shaw Capital, Inc., a Nevada corporation
(88-0441288); Shaw Connex, Inc., a Delaware corporation (31-1333038); Shaw
Global Energy Services, Inc., a Louisiana corporation (72-0962273); Shaw JV
Holdings, Inc., a Louisiana corporation (Applied For); Stone & Webster Asia,
Inc., a Louisiana corporation (Applied For); Stone & Webster Construction,
Inc., a Louisiana corporation (Applied For): Stone & Webster Holding One,
Inc., a Louisiana corporation (72-1478573); Stone & Webster Holding Two,
Inc., a Louisiana corporation (72-1478616); Stone & Webster Inc., a
Louisiana corporation (72-1478572); SWINC Acquisition Four, Inc., a
Louisiana corporation (72-1478641); Stone & Webster International, Inc., a
Louisiana corporation (72-1481348); Stone & Webster Purchasing, Inc., a
Louisiana corporation (72-1481778); SWINC Acquisition Five, L.L.C., a
Louisiana limited liability company (72-1479284); Field Services, Inc., a
Louisiana corporation (Applied For).
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PROSPECTUS
$400,000,000
[THE SHAW GROUP INC. LOGO]
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
----------------------
We may offer and sell the securities listed above with an aggregate
offering price up to $400.0 million in connection with this prospectus. We will
provide specific terms of these offerings and securities in supplements to this
prospectus, including whether the debt securities are guaranteed by all of our
subsidiaries.
The selling shareholders may offer and sell from time to time up to
2,231,773 shares of our common stock in connection with this prospectus. Unless
otherwise provided in a prospectus supplement, we do not expect to receive any
proceeds from the sale of shares by any selling shareholder.
----------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This prospectus may not be used to consummate sales of securities unless
accompanied by a prospectus supplement.
----------------------
This prospectus is dated September 13, 2000.
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TABLE OF CONTENTS
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About This Prospectus....................................... 2
Where You Can Find More Information......................... 2
Forward-Looking Statements.................................. 3
The Company................................................. 3
Use of Proceeds............................................. 4
Ratios of Earnings to Fixed Charges and Earnings to Fixed
Charges Plus Dividends.................................... 4
Description of Debt Securities.............................. 4
Description of Capital Stock................................ 17
Depositary Shares........................................... 22
Description of Warrants..................................... 24
Selling Shareholders........................................ 25
Plan of Distribution........................................ 25
Legal Matters............................................... 27
Experts..................................................... 27
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC") 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 up to a
total dollar amount of $400.0 million. In addition, three selling shareholders
may sell a specified number of shares of our common stock as described elsewhere
in this prospectus. 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
the offering and the offered securities. The prospectus supplement may also add,
update or change information contained in this prospectus. Any statement that we
make in this prospectus will be modified or superseded by any inconsistent
statement made by us in a prospectus supplement. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the regional offices of the SEC located at
7 World Trade Center, Suite 1300, New York, New York 10048 and at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. You may obtain information
on the operation of the SEC's public reference room in Washington, D.C. by
calling the SEC at 1-800-SEC-0330. We also file such information with the New
York Stock Exchange. Such reports, proxy statements and other information may be
read and copied at 30 Broad Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any further filings made with the
SEC under Section 13(a), 13(c), 14 or
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15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") until we sell
all of the securities or we terminate this offering:
- Our Annual Report on Form 10-K, as amended, for the year ended August 31,
1999;
- Our Quarterly Report on Form 10-Q for the quarter ended November 30,
1999;
- Our Quarterly Report on Form 10-Q, as amended, for the quarter ended
February 29, 2000;
- Our Quarterly Report on Form 10-Q for the quarter ended May 31, 2000;
- Our Current Report on Form 8-K, filed with the SEC on September 22, 1999;
- Our Current Report on Form 8-K, filed with the SEC on July 28, 2000;
- Our Current Report on Form 8-K, filed with the SEC on September 13, 2000;
and
- The description of our common stock contained in our Form 8-A dated
September 26, 1996, including any amendment to that form that we may have
filed in the past, or may file in the future, for the purpose of updating
the description of our common stock.
You may request a copy of these filings at no cost by writing or
telephoning us at the following address:
The Shaw Group Inc.
8545 United Plaza Boulevard
Baton Rouge, Louisiana 70809
(225) 932-2500
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. All statements other
than statements of historical facts contained in this prospectus, including
statements regarding our future financial position, business strategy, budgets,
projected costs and plans and objectives of management for future operations,
are forward-looking statements. Although we believe our expectations reflected
in these forward-looking statements are based on reasonable assumptions, we
cannot assure you that these expectations will prove to have been correct. These
forward-looking statements are subject to significant risks, uncertainties, and
assumptions, most of which are beyond our control.
We undertake no obligation to update or revise our forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus might not occur.
THE COMPANY
We are the world's only engineering, procurement and construction provider
with fully integrated piping systems capabilities. As the largest supplier of
fabricated piping systems in the United States, we provide engineering and
design, pipe fabrication, construction and maintenance services, and manufacture
specialty pipe fittings and supports for the power generation, chemical
processing, crude oil refining, petrochemical processing and oil and gas
exploration and production industries. Additionally, Stone & Webster, Inc., a
Shaw Group company, is a leading global provider of engineering, procurement,
construction, consultation and environmental services for the power generation,
process, governmental, and industrial markets. We have offices and operations in
North America, South America, Europe, the Middle
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East and Asia-Pacific and employ more than 13,000 engineers, project managers,
technology professionals, craft workers and other professionals.
Our principal executive offices are located at 8545 United Plaza Boulevard,
Baton Rouge, Louisiana 70809, and our telephone number there is (225) 932-2500.
Additional information concerning us and our subsidiaries is included in
our reports and other documents incorporated by reference in this prospectus.
See "Where You Can Find More Information."
USE OF PROCEEDS
Unless otherwise provided in a prospectus supplement, we will use the net
proceeds from the sale of the securities offered by us pursuant to this
prospectus and any prospectus supplement for our general corporate purposes,
which may include repayment of indebtedness, additions to our working capital,
capital expenditures and potential future acquisitions.
Unless otherwise provided in a prospectus supplement, we do not expect to
receive any proceeds from the sale of our common stock by the selling
shareholders. A portion of the proceeds of the sales by the selling
shareholders, however, will be paid into an escrow for our benefit in accordance
with the purchase agreement with Stone & Webster.
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES PLUS DIVIDENDS
The following table contains our consolidated ratios of earnings to fixed
charges and earnings to fixed charges plus dividends for the periods indicated.
<TABLE>
<CAPTION>
YEAR ENDED AUGUST 31,
NINE MONTHS ENDED -------------------------
MAY 31, 2000 1999 1998 1997 1996
----------------- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges................ 6.79 4.01 3.75 3.95 3.08
---- ---- ---- ---- ----
Ratio of earnings to fixed charges plus
dividends....................................... 6.79 4.01 3.75 3.95 3.08
---- ---- ---- ---- ----
</TABLE>
For purposes of computing the ratios of earnings to fixed charges and
earnings to fixed charges plus dividends:
(1) earnings consist of income before provision for income taxes, earnings
from unconsolidated entity and cumulative effect of change in
accounting principle plus fixed charges (excluding capitalized
interest) and
(2) "fixed charges" consist of interest expense and amortization of debt
discount and expense relating to indebtedness.
There were no dividends paid or accrued during the periods presented above.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be either our senior debt securities ("Senior Debt
Securities") or our subordinated debt securities ("Subordinated Debt
Securities"). The Senior Debt Securities and the Subordinated Debt Securities
will be issued under separate Indentures among us, our domestic subsidiaries, if
our domestic subsidiaries are guarantors of the Debt Securities, and a U.S.
banking institution (a "Trustee"). Senior Debt Securities will be issued under a
"Senior Indenture" and Subordinated Debt Securities will be issued under a
"Subordinated Indenture." Together the Senior Indenture and the Subordinated
Indenture are called "Indentures."
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The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series which are offered by a prospectus supplement
will be described in the prospectus supplement.
The Company primarily conducts its operations through subsidiaries. Unless
the Debt Securities are guaranteed by the Company's subsidiaries as described
below, the rights of the Company and its creditors, including holders of the
Debt Securities to participate in the assets of any subsidiary upon the latter's
liquidation or reorganization will be subject to the prior claims of the
subsidiary's creditors, except to the extent that the Company may itself be a
creditor with recognized claims against such subsidiary.
We have summarized selected provisions of the Indentures below. The summary
is not complete. The form of each Indenture will be filed with the SEC via a
Current Report on Form 8-K prior to our initial offering of Debt Securities
under that Indenture and you should read the Indenture for provisions that may
be important to you. In the summary below we have included references to section
numbers of the applicable Indentures so that you can easily locate these
provisions. Whenever we refer in this prospectus or in the prospectus supplement
to particular sections or defined terms of the Indenture, such sections or
defined terms are incorporated by reference herein or therein, as applicable.
Capitalized terms used in the summary have the meanings specified in the
Indentures.
GENERAL
The Indentures provide that Debt Securities in separate series may be
issued thereunder from time to time without limitation as to aggregate principal
amount. We may specify a maximum aggregate principal amount for the Debt
Securities of any series. (Section 301) We will determine the terms and
conditions of the Debt Securities, including the maturity, principal and
interest, but those terms must be consistent with the Indenture. The Debt
Securities will be our unsecured obligations.
The Subordinated Debt Securities will be subordinated in right of payment
to the prior payment in full of all of our Senior Debt (as defined) as described
under "-- Subordination of Subordinated Debt Securities" and in the prospectus
supplement applicable to any Subordinated Debt Securities. If the prospectus
supplement so indicates, the Subordinated Debt Securities will be convertible
into our common stock as described under "-- Conversion of Subordinated Debt
Securities."
If specified in the prospectus supplement, our domestic subsidiaries (the
"Subsidiary Guarantors") will unconditionally guarantee (the "Subsidiary
Guarantees") on a joint and several basis the Debt Securities as described under
"-- Subsidiary Guarantees" and in the prospectus supplement. The Subsidiary
Guarantees will be unsecured obligations of each Subsidiary Guarantor.
Subsidiary Guarantees of Subordinated Debt Securities will be subordinated to
the Senior Debt of the Subsidiary Guarantors on the same basis as the
Subordinated Debt Securities are subordinated to our Senior Debt.
The applicable prospectus supplement will set forth the price or prices at
which the Debt Securities to be offered will be issued and will describe the
following terms of such Debt Securities:
(1) the title of the Debt Securities;
(2) whether the Debt Securities are Senior Debt Securities or
Subordinated Debt Securities and, if Subordinated Debt Securities, the
related subordination terms;
(3) whether the Subsidiary Guarantors will provide Subsidiary
Guarantees of the Debt Securities;
(4) any limit on the aggregate principal amount of the Debt
Securities;
(5) the dates on which the principal of the Debt Securities will be
payable;
(6) the interest rate which the Debt Securities will bear and the
interest payment dates for the Debt Securities;
(7) the places where payments on the Debt Securities will be payable;
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(8) any terms upon which the Debt Securities may be redeemed, in whole
or in part, at our option;
(9) any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the Debt Securities;
(10) the portion of the principal amount, if less than all, of the
Debt Securities that will be payable upon declaration of acceleration of
the Maturity of the Debt Securities;
(11) whether the Debt Securities are defeasible;
(12) any addition to or change in the Events of Default;
(13) whether the Debt Securities that constitute Subordinated Debt
Securities are convertible into our common stock and, if so, the terms and
conditions upon which conversion will be effected, including the initial
conversion price or conversion rate ("the Conversion Price") and any
adjustments thereto in addition to or different from those described in
this prospectus, the conversion period and other conversion provisions in
addition to or in lieu of those described in this prospectus;
(14) any addition to or change in the covenants in the Indenture
applicable to any of the Debt Securities; and
(15) any other terms of the Debt Securities not inconsistent with the
provisions of the Indenture. (Section 301)
Debt Securities, including Original Issue Discount Securities, may be sold
at a substantial discount below their principal amount. Special United States
federal income tax considerations applicable to Debt Securities sold at an
original issue discount may be described in the applicable prospectus
supplement. In addition, special United States federal income tax or other
considerations applicable to any Debt Securities that are denominated in a
currency or currency unit other than United States dollars may be described in
the applicable prospectus supplement.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The indebtedness evidenced by the Subordinated Debt Securities will, to the
extent set forth in the Subordinated Indenture with respect to each series of
Subordinated Debt Securities, be subordinate in right of payment to the prior
payment in full of all of our Senior Debt, including the Senior Debt Securities,
and it may also be senior in right of payment to all of our Subordinated Debt.
The prospectus supplement relating to any Subordinated Debt Securities will
summarize the subordination provisions of the Subordinated Indenture applicable
to that series including:
- the applicability and effect of such provisions upon any payment or
distribution of our assets to creditors upon any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors or marshaling of assets or any bankruptcy, insolvency or
similar proceedings;
- the applicability and effect of such provisions in the event of specified
defaults with respect to any Senior Debt, including the circumstances
under which and the periods in which we will be prohibited from making
payments on the Subordinated Debt Securities; and
- the definition of Senior Debt applicable to the Subordinated Debt
Securities of that series and, if the series is issued on a senior
subordinated basis, the definition of Subordinated Debt applicable to
that series.
The prospectus supplement will also describe as of a recent date the approximate
amount of Senior Debt to which the Subordinated Debt Securities of that series
will be subordinated.
The failure to make any payment on any of the Subordinated Debt Securities
by reason of the subordination provisions of the Subordinated Indenture
described in the prospectus supplement will not be
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construed as preventing the occurrence of an Event of Default with respect to
the Subordinated Debt Securities arising from any such failure to make payment.
The subordination provisions described above will not be applicable to
payments in respect of the Subordinated Debt Securities from a defeasance trust
established in connection with any defeasance or covenant defeasance of the
Subordinated Debt Securities as described under "-- Defeasance and Covenant
Defeasance."
CONVERSION OF SUBORDINATED DEBT SECURITIES
The Subordinated Indenture may provide for a right of conversion of
Subordinated Debt Securities into our common stock (or cash in lieu thereof).
(Sections 301 and 1701 of the Subordinated Indenture). The following provisions
will apply to Debt Securities that are convertible Subordinated Debt Securities
unless otherwise provided in the prospectus supplement for such Debt Securities.
The Holder of any convertible Subordinated Debt Securities will have the
right exercisable at any time prior to the close of business on the second
Business Day prior to their Stated Maturity, unless previously redeemed or
otherwise purchased by us, to convert such Subordinated Debt Securities into
shares of common stock at the Conversion Price set forth in the prospectus
supplement, subject to adjustment. (Section 1702 of the Subordinated Indenture)
The Holder of convertible Subordinated Debt Securities may convert any portion
thereof which is $1,000 in principal amount or any multiple thereof. (Section
1702 of the Subordinated Indenture)
In certain events, the Conversion Price will be subject to adjustment as
set forth in the Subordinated Indenture. Such events include:
(a) any payment of a dividend (or other distribution) payable in
common stock on any class of our Capital Stock,
(b) any subdivision, combination or reclassification of common stock,
(c) any issuance to all holders of common stock of rights, options or
warrants entitling them to subscribe for or purchase common stock at less
than the then current market price (as determined in accordance with the
Subordinated Indenture) of common stock; provided, however, that if such
rights, options or warrants are only exercisable upon the occurrence of
certain triggering events relating to control and provided for in
shareholders' rights plans, then the Conversion Price will not be adjusted
until such triggering events occur,
(d) any distribution to all holders of common stock of evidences of
indebtedness, shares of our Capital Stock other than common stock, cash or
other assets (including securities, but excluding those dividends and
distributions referred to above for which an adjustment must be made and
excluding regular dividends and distributions paid exclusively in cash),
(e) any distribution consisting exclusively of cash (excluding any
cash portion of distributions referred to in (d) above, or cash distributed
upon a merger or consolidation to which the third succeeding paragraph
applies) to all holders of common stock in an aggregate amount that,
combined together with (1) all other such all-cash distributions made
within the then preceding 12 months in respect of which no adjustment has
been made and (2) any cash and the fair market value of other consideration
paid or payable in respect of any tender offer by us or any of our
Subsidiaries for common stock concluded within the preceding 12 months in
respect of which no adjustment has been made, exceeds 15% of our company's
market capitalization (defined as being the product of the then current
market price of the common stock times the number of shares of common stock
then outstanding) on the record date of such distribution, and
(f) the completion of a tender or exchange offer made by us or any of
our Subsidiaries for common stock that involves an aggregate consideration
that, together with (1) any cash and the fair market value of other
consideration payable in a tender or exchange offer by us or any of our
Subsidiaries for common stock expiring within the 12 months preceding the
expiration of such tender
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or exchange offer in respect of which no adjustment has been made and (2)
the aggregate amount of any such all-cash distributions referred to in (e)
above to all holders of common stock within the 12 months preceding the
expiration of such tender or exchange offer in respect of which no
adjustments have been made, exceeds 15% of our market capitalization on the
expiration of such tender offer.
No adjustment of the Conversion Price will be required to be made until the
cumulative adjustments amount to 1.0% or more of the Conversion Price as last
adjusted. We reserve the right to make such reductions in the Conversion Price
in addition to those required in the preceding provisions as we consider to be
advisable in order that any event treated for federal income tax purposes as a
dividend of a stock or stock rights will not be taxable to the recipients.
Should we elect to make such a reduction in the Conversion Price, we will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder if and to the extent that such laws
and regulations are applicable in connection with the reduction of the
Conversion Price. (Section 1704 of the Subordinated Indenture)
If we distribute rights or warrants (other than those referred to in (c) in
the preceding paragraph) pro rata to holders of common stock, so long as any
such rights or warrants have not expired or been redeemed by us, the Holder of
any convertible Subordinated Debt Security surrendered for conversion will be
entitled to receive upon such conversion, in addition to the shares of common
stock issuable upon such conversion (the "Conversion Shares"), a number of
rights or warrants to be determined as follows:
(1) if such conversion occurs on or prior to the date for the
distribution to the holders of rights or warrants of separate certificates
evidencing such rights or warrants (the "Distribution Date"), the same
number of rights or warrants to which a holder of a number of shares of
common stock equal to the number of Conversion Shares is entitled at the
time of such conversion in accordance with the terms and provisions of and
applicable to the rights or warrants, and
(2) if such conversion occurs after such Distribution Date, the number
of rights or warrants to which a holder of the number of shares of common
stock into which such Subordinated Debt Security was convertible
immediately prior to such Distribution Date would have been entitled on
such Distribution Date in accordance with the terms and provisions of and
applicable to the rights or warrants.
The Conversion Price will not be subject to adjustment on account of any
declaration, distribution or exercise of such rights or warrants. (Section 1704
of the Subordinated Indenture)
Fractional shares of common stock will not be issued upon conversion, but,
instead, we will pay a cash adjustment based on the then current market price
for the common stock. (Section 1703 of the Subordinated Indenture) Upon
conversion, no adjustments will be made for accrued interest or dividends, and
therefore convertible Subordinated Debt Securities surrendered for conversion
between the record date for an interest payment and the Interest Payment Date
(except convertible Subordinated Debt Securities called for redemption on a
redemption date during such period) must be accompanied by payment of an amount
equal to the interest thereon which the Holder is to receive. (Sections 1704 and
1702 of the Subordinated Indenture)
In the case of any reclassification of the Conversion Shares, consolidation
or merger of our company with or into another Person or any merger of another
Person with or into us (with certain exceptions), or in case of any transfer or
other disposition of all or substantially all of our assets, each convertible
Subordinated Debt Security then outstanding will, without the consent of any
Holder, become convertible only into the kind and amount of securities, cash and
other property receivable upon such reclassification, consolidation, merger,
conveyance, transfer or lease by a holder of the number of shares of common
stock into which such Subordinated Debt Security was convertible immediately
prior thereto, after giving effect to any adjustment event, who failed to
exercise any rights of election and received per share the kind and
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amount received per share by a plurality of non-electing shares. (Section 1705
of the Subordinated Indenture)
SUBSIDIARY GUARANTEES
If specified in the prospectus supplement, the Subsidiary Guarantors will
guarantee the Debt Securities of a series. Unless otherwise indicated in the
prospectus supplement, the following provisions will apply to the Subsidiary
Guarantees of the Subsidiary Guarantors.
Subject to the limitations described below and in the prospectus
supplement, the Subsidiary Guarantors will, jointly and severally,
unconditionally guarantee the punctual payment when due, whether at Stated
Maturity, by acceleration or otherwise, of all our obligations under the
Indentures and the Debt Securities of a series, whether for principal of,
premium, if any, or interest on the Debt Securities or otherwise (all such
obligations guaranteed by a Subsidiary Guarantor being herein called the
"Guaranteed Obligations"). The Subsidiary Guarantors will also pay all expenses
(including reasonable counsel fees and expenses) incurred by the applicable
Trustee in enforcing any rights under a Subsidiary Guarantee with respect to a
Subsidiary Guarantor.
In the case of Subordinated Debt Securities, a Subsidiary Guarantor's
Subsidiary Guarantee will be subordinated in right of payment to the Senior Debt
of such Subsidiary Guarantor on the same basis as the Subordinated Debt
Securities are subordinated to our Senior Debt. No payment will be made by any
Subsidiary Guarantor under its Subsidiary Guarantee during any period in which
payments by us on the Subordinated Debt Securities are suspended by the
subordination provisions of the Subordinated Indenture. (Article Fourteen of the
Subordinated Indenture)
Each Subsidiary Guarantee will be limited in amount to an amount not to
exceed the maximum amount that can be guaranteed by the relevant Subsidiary
Guarantor without rendering such Subsidiary Guarantee voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
Each Subsidiary Guarantee will be a continuing guarantee and will:
(1) remain in full force and effect until either (a) payment in full
of all the Guaranteed Obligations (or the applicable Debt Securities are
defeased and discharged in accordance with the defeasance provisions of the
Indentures) or (b) released as described in the following paragraph,
(2) be binding upon each Subsidiary Guarantor and
(3) inure to the benefit of and be enforceable by the applicable
Trustee, the Holders and their successors, transferees and assigns.
In the event that a Subsidiary Guarantor ceases to be a Subsidiary, whether
as a result of a disposition of all or substantially all of the assets or all of
the Capital Stock of such Subsidiary Guarantor, by way of sale, merger,
consolidation or otherwise, such Subsidiary Guarantor will be deemed released
and relieved of its obligations under its Subsidiary Guarantee without any
further action required on the part of the Trustee or any Holder, and no other
person acquiring or owning the assets or Capital Stock of such Subsidiary
Guarantor will be required to enter into a Subsidiary Guarantee; provided, in
each case, that the transaction or transactions resulting in such Subsidiary
Guarantor's ceasing to be a Subsidiary are carried out pursuant to and in
compliance with all of the applicable covenants in the Indenture. In addition,
the prospectus supplement may specify additional circumstances under which a
Subsidiary Guarantor can be released from its Subsidiary Guarantee.
FORM, EXCHANGE AND TRANSFER
The Debt Securities of each series will be issuable only in fully
registered form, without coupons, and, unless otherwise specified in the
applicable prospectus supplement, only in denominations of $1,000 and integral
multiples thereof. (Section 302)
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At the option of the Holder, subject to the terms of the applicable
Indenture and the limitations applicable to Global Securities, Debt Securities
of each series will be exchangeable for other Debt Securities of the same series
of any authorized denomination and of a like tenor and aggregate principal
amount. (Section 305)
Subject to the terms of the applicable Indenture and the limitations
applicable to Global Securities, Debt Securities may be presented for exchange
as provided above or for registration of transfer (duly endorsed or with the
form of transfer endorsed thereon duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by us for such
purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but we may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith. Such
transfer or exchange will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. The Security Registrar and any
other transfer agent initially designated by us for any Debt Securities will be
named in the applicable prospectus supplement. (Section 305) We may at any time
designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts,
except that we will be required to maintain a transfer agent in each Place of
Payment for the Debt Securities of each series. (Section 1002).
If the Debt Securities of any series (or of any series and specified terms)
are to be redeemed in part, we will not be required to (i) issue, register the
transfer of or exchange any Debt Security of that series (or of that series and
specified terms, as the case may be) during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of any such
Debt Security that may be selected for redemption and ending at the close of
business on the day of such mailing or (ii) register the transfer of or exchange
any Debt Security so selected for redemption, in whole or in part, except the
unredeemed portion of any such Debt Security being redeemed in part. (Section
305)
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby. Each
Global Security will be registered in the name of a Depositary or its nominee
identified in the applicable prospectus supplement, will be deposited with such
Depositary or nominee or its custodian and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof referred to below
and any such other matters as may be provided for pursuant to the applicable
Indenture.
Notwithstanding any provision of the Indentures or any Debt Security
described in this prospectus, no Global Security may be exchanged in whole or in
part for Debt Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any person other than the
Depositary for such Global Security or any nominee of such Depositary unless:
(1) the Depositary has notified us that it is unwilling or unable to
continue as Depositary for such Global Security or has ceased to be
qualified to act as such as required by the applicable Indenture,
(2) an Event of Default with respect to the Debt Securities
represented by such Global Security has occurred and is continuing and the
Security Registrar has received a written request from the Depositary to
issue certificated Debt Securities, or
(3) other circumstances exist, in addition to or in lieu of those
described above, 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. (Sections
205 and 305)
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As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities that it represents for all purposes under the Debt Securities and the
applicable Indenture. Except in the limited circumstances referred to above,
owners of beneficial interests in a Global Security will not be entitled to have
such Global Security or any Debt Securities that it represents registered in
their names, will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange therefor and will not be considered to
be the owners or Holders of such Global Security or any Debt Securities that is
represents for any purpose under the Debt Securities or the applicable
Indenture. All payments on a Global Security will be made to the Depositary or
its nominee, as the case may be, as the Holder of the security. The laws of some
jurisdictions require that some purchasers of Debt Securities take physical
delivery of such Debt Securities in definitive form. These laws may impair the
ability to transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary
(with respect to participants' interests) or any such participant (with respect
to interests of persons held by such participants on their behalf). Payments,
transfers, exchanges and other matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of us, the Subsidiary Guarantors, the
Trustees or the agents of ourself, the Subsidiary Guarantors or the Trustees
will have any responsibility or liability for any aspect of the Depositary's or
any participant's records relating to, or for payments made on account of,
beneficial interests in a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307)
Unless otherwise indicated in the applicable prospectus supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as we
may designate for such purpose from time to time, except that at our option
payment of any interest may be made by check mailed to the address of the Person
entitled thereto as such address appears in the Security Register. Unless
otherwise indicated in the applicable prospectus supplement, the corporate trust
office of the Trustee under the Senior Indenture in The City of New York will be
designated as sole Paying Agent for payments with respect to Senior Debt
Securities of each series, and the corporate trust office of the Trustee under
the Subordinated Indenture in The City of New York will be designated as the
sole Paying Agent for payment with respect to Subordinated Debt Securities of
each series. Any other Paying Agents initially designated by us for the Debt
Securities of a particular series will be named in the applicable prospectus
supplement. We may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent or approve a change in the office through which
any Paying Agent acts, except that we will be required to maintain a Paying
Agent in each Place of Payment for the Debt Securities of a particular series.
(Section 1002)
All moneys paid by us to a Paying Agent for the payment of the principal of
or any premium or interest on any Debt Security which remain unclaimed at the
end of two years after such principal, premium or interest has become due and
payable will be repaid to us, and the Holder of such Debt Security thereafter
may look only to us for payment thereof. (Section 1003)
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CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into, or transfer, lease or otherwise
dispose of all or substantially all of our assets to, any Person (a "successor
Person"), and may not permit any Person to consolidate with or merge into us,
unless:
(1) the successor Person (if any) is a corporation, partnership, trust
or other entity organized and validly existing under the laws of any
domestic jurisdiction and assumes our obligations on the Debt Securities
and under the Indentures,
(2) immediately after giving effect to the transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing and
(3) several other conditions, including any additional conditions with
respect to any particular Debt Securities specified in the applicable
prospectus supplement, are met. (Section 801)
EVENTS OF DEFAULT
Unless otherwise specified in the prospectus supplement, each of the
following will constitute an Event of Default under the applicable Indenture
with respect to Debt Securities of any series:
(1) failure to pay principal of or any premium on any Debt Security of
that series when due, whether or not, in the case of Subordinated Debt
Securities, such payment is prohibited by the subordination provisions of
the Subordinated Indenture;
(2) failure to pay any interest on any Debt Securities of that series
when due, continued for 30 days, whether or not, in the case of
Subordinated Debt Securities, such payment is prohibited by the
subordination provisions of the Subordinated Indenture;
(3) failure to deposit any sinking fund payment, when due, in respect
of any Debt Security of that series, whether or not, in the case of
Subordinated Debt Securities, such deposit is prohibited by the
subordination provisions of the Subordinated Indenture;
(4) failure to perform or comply with the provisions described under
"Consolidation, Merger and Sale of Assets";
(5) failure to perform any of our other covenants in such Indenture
(other than a covenant included in such Indenture solely for the benefit of
a series other than that series), continued for 60 days after written
notice has been given by the applicable Trustee, or the Holders of at least
25% in principal amount of the Outstanding Debt Securities of that series,
as provided in such Indenture;
(6) certain events of bankruptcy, insolvency or reorganization
affecting us, any Significant Subsidiary or any group of Subsidiaries that
together would constitute a Significant Subsidiary; and
(7) in the case of Debt Securities guaranteed by any Significant
Subsidiary or any group of Subsidiaries that together would constitute a
Significant Subsidiary, the Subsidiary Guarantee of any such Guarantor or
group of Guarantors is held by a final non-appealable order or judgment of
a court of competent jurisdiction to be unenforceable or invalid or ceases
for any reason to be in full force and effect (other than in accordance
with the terms of the applicable Indenture) or any Significant Subsidiary
or any group of Subsidiaries that together would constitute a Significant
Subsidiary or any Person acting on behalf of Guarantor or group of
Guarantors denies or disaffirms such Guarantor's obligations under its
Subsidiary Guarantee (other than by reason of a release of such Guarantor
from its Subsidiary Guarantee in accordance with the terms of the
applicable Indenture). (Section 501)
If an Event of Default (other than an Event of Default described in clause
(6) above) with respect to the Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the applicable 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 principal
amount of the Debt
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Securities of that series (or, in the case of any Debt Security that is an
Original Issue Discount Debt Security or the principal amount of which is not
then determinable, such portion of the principal amount of such Debt Security,
or such other amount in lieu of such principal amount, as may be specified in
the terms of such Debt Security) to be due and payable immediately. If an Event
of Default described in clause (6) above with respect to the Debt Securities of
any series at the time Outstanding shall occur, the principal amount of all the
Debt Securities of that series (or, in the case of any such Original Issue
Discount Security or other Debt Security, such specified amount) will
automatically, and without any action by the applicable Trustee or any Holder,
become immediately due and payable. After any such acceleration, but before a
judgment or decree based on acceleration, the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than the non-payment of accelerated principal (or other specified amount),
have been cured or waived as provided in the applicable Indenture. (Section 502)
For information as to waiver of defaults, see "-- Modification and Waiver"
below.
Subject to the provisions of the Indentures relating to the duties of the
Trustees in case an Event of Default shall occur and be continuing, each Trustee
will be under no obligation to exercise any of its rights or powers under the
applicable Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to such Trustee reasonable indemnity. (Section
603) Subject to such provisions for the indemnification of the Trustees, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Debt Securities
of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the applicable Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless:
(1) such Holder has previously given to the Trustee under the
applicable Indenture written notice of a continuing Event of Default with
respect to the Debt Securities of that series,
(2) the Holders of at least 25% in principal amount of the Outstanding
Debt Securities of that series have made written request, and such Holder
or Holders have offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee and
(3) the Trustee has failed to institute such proceeding, and has not
received from the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with
such request, within 60 days after such notice, request and offer. (Section
507)
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for the enforcement of payment of the principal of or any premium
or interest on such Debt Security on or after the applicable due date specified
in such Debt Security or, if applicable, to convert such Debt Security. (Section
508)
We will be required to furnish to each Trustee annually a statement by
certain of our officers as to whether or not we, to their knowledge, are in
default in the performance or observance of any of the terms, provisions and
conditions of the applicable Indenture and, if so, specifying all such known
defaults. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of an Indenture may be made by us, the
Subsidiary Guarantors, if applicable, and the applicable Trustee with the
consent of the Holders of a majority in principal amount of the Outstanding Debt
Securities of each series affected by such modification or amendment; provided,
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however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security,
(2) reduce the principal amount of, or any premium or interest on, any
Debt Security,
(3) reduce the amount of principal of an Original Issue Discount
Security or any other Debt Security payable upon acceleration of the
Maturity thereof,
(4) change the place or currency of payment of principal of, or any
premium or interest on, any Debt Security,
(5) impair the right to institute suit for the enforcement of any
payment on or any conversion right with respect to any Debt Security,
(6) in the case of Subordinated Debt Securities, modify the
subordination or conversion provisions in a manner adverse to the Holders
of the Subordinated Debt Securities,
(7) except as provided in the applicable Indenture, release the
Subsidiary Guarantee of a Subsidiary Guarantor,
(8) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of whose Holders is required for
modification or amendment of the Indenture,
(9) reduce the percentage in principal amount of Outstanding Debt
Securities of any series necessary for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults or
(10) modify such provisions with respect to modification and waiver.
(Section 902)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may waive compliance by us with certain restrictive
provisions of the applicable Indenture.(Section 1009) The Holders of a majority
in principal amount of the Outstanding Debt Securities of any series may waive
any past default under the applicable Indenture, except a default in the payment
of principal, premium or interest and certain covenants and provisions of the
Indenture which cannot be amended without the consent of the Holder of each
Outstanding Debt Security of such series affected. (Section 513)
The Indentures provide that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver or other action under such
Indenture as of any date,
(1) the principal amount of an Original Issue Discount Security that
will be deemed to be Outstanding will be the amount of the principal
thereof that would be due and payable as of such date upon acceleration of
the Maturity thereof to such date,
(2) if, as of such date, the principal amount payable at the Stated
Maturity of a Debt Security is not determinable (for example, because it is
based on an index), the principal amount of such Debt Security deemed to be
Outstanding as of such date will be an amount determined in the manner
prescribed for such Debt Security and
(3) the principal amount of a Debt Security denominated in one or more
foreign currencies or currency units that will be deemed to be Outstanding
will be the U.S. dollar equivalent, determined as of such date in the
manner prescribed for such Debt Security, of the principal amount of such
Debt Security (or, in the case of a Debt Security described in clause (1)
or (2) above, of the amount described in such clause).
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Certain Debt Securities, including those for whose payment or redemption money
has been deposited or set aside in trust for the Holders and those that have
been fully defeased pursuant to Section 1502, will not be deemed to be
Outstanding. (Section 101)
Except in certain limited circumstances, we will be entitled to set any day
as a record date for the purpose of determining the Holders of Outstanding Debt
Securities of any series entitled to give or take any direction, notice,
consent, waiver or other action under the applicable Indenture, in the manner
and subject to the limitations provided in the Indenture. In certain limited
circumstances, the Trustee will be entitled to set a record date for action by
Holders. If a record date is set for any action to be taken by Holders of a
particular series, such action may be taken only by persons who are Holders of
Outstanding Debt Securities of that series on the record date. To be effective,
such action must be taken by Holders of the requisite principal amount of such
Debt Securities within a specified period following the record date. For any
particular record date, this period will be 180 days or such other period as may
be specified by us (or the Trustee, if it set the record date), and may be
shortened or lengthened (but not beyond 180 days) from time to time. (Section
104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable prospectus supplement, we
may elect, at our option at any time, to have the provisions of Section 1502,
relating to defeasance and discharge of indebtedness, or Section 1503, relating
to defeasance of certain restrictive covenants applied to the Debt Securities of
any series, or to any specified part of a series. (Section 1501)
Defeasance and Discharge. The Indentures provide that, upon our exercise of
our option (if any) to have Section 1502 applied to any Debt Securities, we and,
if applicable, each Subsidiary Guarantor will be discharged from all our
obligations, and, if such Debt Securities are Subordinated Debt Securities, the
provisions of the Subordinated Indenture relating to subordination (but not to
conversion, if applicable) will cease to be effective, with respect to such Debt
Securities (except for certain obligations to exchange or register the transfer
of Debt Securities, to replace stolen, lost or mutilated Debt Securities, to
maintain paying agencies and to hold moneys for payment in trust) upon the
deposit in trust for the benefit of the Holders of such Debt Securities of money
or U.S. Government Obligations, or both, which, through the payment of principal
and interest in respect thereof in accordance with their terms, will provide
money in an amount sufficient to pay the principal of and any premium and
interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the applicable Indenture and such Debt Securities.
Such defeasance or discharge may occur only if, among other things,
(1) we have delivered to the applicable Trustee an Opinion of Counsel
to the effect that we have received from, or there has been published by,
the United States Internal Revenue Service a ruling, or there has been a
change in tax law, in either case to the effect that Holders of such Debt
Securities will not recognize gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject
to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit, defeasance and
discharge were not to occur;
(2) no Event of Default or event that with the passing of time or the
giving of notice, or both, shall constitute an Event of Default shall have
occurred and be continuing;
(3) such deposit, defeasance and discharge will not result in a breach
or violation of, or constitute a default under, any agreement or instrument
to which we are a party or by which we are bound;
(4) in the case of Subordinated Debt Securities, at the time of such
deposit, no default in the payment of all or a portion of principal of (or
premium, if any) or interest on any of our Senior Debt shall have occurred
and be continuing, no event of default shall have resulted in the
acceleration of any of our Senior Debt and no other event of default with
respect to any of our Senior Debt shall
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have occurred and be continuing permitting after notice or the lapse of
time, or both, the acceleration thereof; and
(5) we have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit shall not cause the Trustee or the trust so
created to be subject to the Investment Company Act of 1940. (Sections 1502
and 1504)
Defeasance of Certain Covenants. The Indentures provide that, upon our
exercise of our option (if any) to have Section 1503 applied to any Debt
Securities, we may omit to comply with certain restrictive covenants, including
those that may be described in the applicable prospectus supplement, the
occurrence of certain Events of Default, which are described above in clause (5)
(with respect to such restrictive covenants) and clauses (6) and (7) under
"Events of Default" and any that may be described in the applicable prospectus
supplement, will not be deemed to either be or result in an Event of Default
and, if such Debt Securities are Subordinated Debt Securities, the provisions of
the Subordinated Indenture relating to subordination (but not to conversion, if
applicable) will cease to be effective, in each case with respect to such Debt
Securities. In order to exercise such option, we must deposit, in trust for the
benefit of the Holders of such Debt Securities, money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance with the terms of
the applicable Indenture and such Debt Securities. Such covenant defeasance may
occur only if we have delivered to the applicable Trustee an Opinion of Counsel
that in effect says that Holders of such Debt Securities will not recognize gain
or loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit and defeasance were not to occur, and the requirements set
forth in clauses (2), (3), (4) and (5) above are satisfied. If we exercise this
option with respect to any Debt Securities and such Debt Securities were
declared due and payable because of the occurrence of any Event of Default, the
amount of money and U.S. Government Obligations so deposited in trust would be
sufficient to pay amounts due on such Debt Securities at the time of their
respective Stated Maturities but may not be sufficient to pay amounts due on
such Debt Securities upon any acceleration resulting from such Event of Default.
In such case, we would remain liable for such payments. (Sections 1503 and 1504)
NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
101 and 106)
TITLE
We, the Subsidiary Guarantors, the Trustees and any agent of us, the
Subsidiary Guarantors or a Trustee may treat the Person in whose name a Debt
Security is registered as the absolute owner of the Debt Security (whether or
not such Debt Security may be overdue) for the purpose of making payment and for
all other purposes. (Section 308)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the law of the State of New York. (Section 112)
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DESCRIPTION OF CAPITAL STOCK
As of August 22, 2000, our authorized capital stock was 55,000,000 shares.
Those shares consisted of: (a) 5,000,000 shares of preferred stock, no par
value, none of which were outstanding; and (b) 50,000,000 shares of common
stock, no par value, of which 17,745,396 shares were outstanding. In addition,
at August 22, 2000, 1,645,000 shares of common stock were reserved for issuance
pursuant to our 1993 Employee Stock Option Plan and 50,000 shares of common
stock were reserved for issuance under our 1996 Non-Employee Director Stock
Option Plan. The following summary of certain provisions of our capital stock
does not purport to be complete and is subject to and is qualified in its
entirety by our articles of incorporation and by-laws, which are incorporated in
this prospectus by reference as exhibits to the registration statement of which
this prospectus forms a part, and by the provisions of applicable law.
COMMON STOCK
Cumulative voting is prohibited in the election of directors. Our common
stock is not redeemable, does not have any conversion rights and is not subject
to call by us. Holders of our common stock have no preemptive rights to maintain
their respective percentage of ownership in future offerings or sales of stock
by us. In addition to the voting rights described below, ownership of our common
stock entitles holders to the right:
- to receive ratably such dividends, if any, as may be declared from time
to time by our board of directors out of funds legally available for
dividends; and
- in the event of our liquidation, dissolution or winding up, to share
equally and ratably in the assets available for distribution after
payment of all liabilities and subject to any prior rights of any holders
of preferred stock then outstanding.
The shares of our common stock presently outstanding are fully paid and
non-assessable. Our common stock trades on the New York Stock Exchange under the
symbol "SGR."
Each outstanding share of common stock for which there has been no change
in beneficial ownership during the four years preceding the record date will
entitle its holder to five votes on each matter properly submitted to our
shareholders for their vote, waiver, release or other action. Holders of shares
that have changed beneficial ownership within the four-year period will be
entitled to only one vote per share. A change in beneficial ownership of an
outstanding share of common stock is deemed to have occurred whenever a change
occurs in any person or persons who, directly or indirectly, through any
contract, agreement, arrangement, understanding, relationship or otherwise, has
or shares any of the following:
- voting power, which includes, without limitation, the right to vote or
the power to direct the voting power of the share of common stock;
- investment power, which includes, without limitation, the power to direct
the sale or other disposition of the share of common stock;
- the right to receive or to retain the proceeds of any sale or other
disposition of the share of common stock; or
- the right to receive or to retain any distributions, including, without
limitation, cash dividends, in respect of the share of common stock.
Applying the general rules set forth above, the following events or
conditions are specifically deemed to involve a change in beneficial ownership
of a share of common stock:
- in the absence of proof to the contrary provided in accordance with
procedures set forth below, an outstanding share of common stock is
transferred of record into the name of any other person, or upon the
issuance of shares in a public offering;
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- in the case of an outstanding share of common stock held of record in the
name of a corporation, general partnership, limited partnership, voting
trustee, bank, trust company, broker, nominee or clearing agency, if it
has not been established according to the procedures set forth below that
there has been no change in the person or persons who direct the exercise
of the rights referred to in the preceding set of bullet points with
respect to the outstanding share of common stock during the four years
immediately preceding the record date;
- in the case of an outstanding share of common stock held of record in the
name of any person as a trustee, agent, guardian or custodian under the
Uniform Gifts to Minors Act as in effect in any jurisdiction, there is a
change in the beneficiary of the trust, the principal of the agent, the
ward of the guardian, the minor for whom the custodian is acting or a
change in the trustee, agent, guardian or custodian; or
- in the case of outstanding shares of common stock beneficially owned by a
person or group of persons, who, after acquiring, directly or indirectly,
the beneficial ownership of five percent of the outstanding shares of
common stock, fails to notify us of the person's or group's ownership
within ten days after the acquisition.
Contrary provisions in our articles of incorporation aside, no change in
beneficial ownership of an outstanding share of common stock will be deemed to
have occurred solely as a result of:
- any transfer without valuable consideration, including, without
limitation, transfers effected by:
- bequest or inheritance;
- operation of law upon the death of an individual; or
- other transfers without valuable consideration, such as gifts made in
good faith and not for the purpose of circumventing provisions of our
articles of incorporation;
- any changes in the beneficiary of a trust, or any distribution of an
outstanding share of common stock from the trust, by reason of the birth,
death, marriage or divorce of any natural person;
- the adoption of any natural person prior to the age of 18;
- the passage of a given period of time;
- the attainment by any natural person of a specific age;
- the creation or termination of any guardianship or custodial arrangement;
- any appointment of a successor trustee, agent, guardian or custodian with
respect to an outstanding share of common stock if neither the successor
has nor its predecessor had the power to vote or to dispose of the share
of common stock without further instructions from others;
- any change in the person to whom dividends or other distributions in
respect of an outstanding share of common stock are to be paid pursuant
to the issuance or modification of a revocable dividend payment order;
- any issuance of a share of common stock by us or any transfer by us of a
share of common stock held in treasury other than in a public offering of
the share, unless otherwise determined by the board of directors at the
time of authorizing the issuance or transfer;
- any giving of a proxy in connection with a solicitation of proxies
subject to the provisions of Section 14 of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder;
- any transfer, whether or not with consideration, among individuals
related or formerly related by blood, marriage or adoption, defined as
relatives, or between a relative and any person controlled by one or more
relatives where the principal purpose for the transfer is to further the
estate tax planning objectives of the transferor or of relatives of the
transferor;
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- any appointment of a successor trustee as a result of the death of the
predecessor trustee who was a natural person;
- any appointment of a successor trustee who was specifically named in a
trust instrument prior to the effective date of this offering; or
- any appointment of a successor trustee as a result of the resignation,
removal or failure to qualify of a predecessor trustee or as a result of
mandatory retirement pursuant to the express terms of a trust instrument;
provided, that less than 50% of the trustees administering any single
trust will have changed, including in the percentage the appointment of
the successor trustee, during the four-year period preceding the
appointment of the successor trustee.
All determinations concerning changes in beneficial ownership, or the
absence of any change, are made by our board of directors or by a transfer agent
for our common stock at our request. Written procedures designated to facilitate
the determinations have been established and may be amended by our board of
directors. These procedures should provide the manner of proof of facts that
will be accepted and the frequency with which such proof may be required to be
renewed. We and any transfer agent will be entitled to rely on any information
concerning beneficial ownership of the outstanding shares of our common stock
coming to our attention from any source and in any manner reasonably deemed by
us to be reliable. However, neither we nor any transfer agent will be charged
with any other knowledge concerning the beneficial ownership of outstanding
shares of our common stock.
In the event of any stock split or stock dividend of our common stock, each
share acquired by reason of the split or dividend will be deemed to have been
beneficially owned by the same person from the acquisition date of the share
from which it originated.
Each outstanding share of our common stock, whether at any particular time
the holder thereof is entitled to exercise five votes or one vote, shall be
identical to all other shares of our common stock in all respects, and together
the outstanding shares of common stock will constitute a single class of our
shares.
PREFERRED STOCK
The description of the terms of the preferred stock set forth below and to
be set forth in an applicable prospectus supplement will not be complete and
will be subject to and qualified in its entirety by reference to our articles of
incorporation and the articles of amendment relating to the applicable series of
preferred stock. The registration statement of which this prospectus forms a
part will include the articles of amendment as an exhibit or incorporate it by
reference.
Pursuant to our articles of incorporation, our board of directors may, by
resolution and without further action or vote by our shareholders, provide for
the issuance of up to 5,000,000 shares of preferred stock in one or more series
having such voting powers, and such designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations,
or restrictions thereof, as the board of directors may determine. The prospectus
supplement will specify any terms of any series of preferred stock offered by it
including:
- the series, the number of shares offered and the liquidation value of the
preferred stock,
- the price at which the preferred stock will be issued,
- the dividend rate, the dates on which the dividends will be payable and
other terms relating to the payment of dividends on the preferred stock,
- the liquidation preference of the preferred stock,
- whether the preferred stock is redeemable or subject to a sinking fund,
and the terms of any such redemption or sinking fund,
- the extent to which holders of the shares of the preferred stock shall be
entitled to vote,
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- whether the preferred stock is convertible into or exchangeable for any
other securities, and the terms of any such conversion or exchange, and
- any additional rights, preferences, qualifications, limitations or
restrictions of the preferred stock.
Holders of the shares of preferred stock will have no preemptive rights.
Undesignated preferred stock may enable our Board of Directors to render
more difficult or to discourage an attempt to obtain control of us by means of a
tender offer, proxy contest, merger or otherwise, and to thereby protect the
continuity of our management. The issuance of shares of a new series of
preferred stock may adversely affect the rights of the holders of our common
stock. For example, unless otherwise provided in a prospectus supplement, any
new series of preferred stock issued will rank prior to our common stock as to
dividend rights, liquidation preference or both and may be convertible into
shares of common stock. As a result, the issuance of shares of a new series of
preferred stock may discourage bids for our common stock or may otherwise
adversely affect the market price of our common stock. Our board may issue
preferred stock without shareholder approval and with voting or conversion
rights that could adversely affect the voting power of holders of our common
stock.
LOUISIANA FAIR PRICE AND CONTROL ACQUISITION STATUTES
Under Louisiana law, the acquisition of voting power, which is called a
"control share acquisition," of an "issuing public corporation" that results in
the purchaser acquiring voting power in excess of 20%, 33% or 51% of the total
voting power of the issuing public corporation requires approval of a majority
of the voting power of the issuing public corporation and each class entitled to
vote separately on the proposal, excluding the shares of the acquiring person,
any officer of the issuing public corporation and any employee of the issuing
public corporation who is also a director of the corporation. Shares acquired in
a control share acquisition without such approval will have no voting rights and
under certain circumstances may be subject to redemption by the corporation. The
restrictions imposed under the law are applicable to all Louisiana corporations
that fall within the definition of an "issuing public corporation," as we do,
unless the issuing public corporation's articles of incorporation or by-laws
contain a provision expressly disclaiming them, which ours do not. Therefore,
these restrictions contained in Louisiana law apply to us.
In addition, if particular elections were to be made by our board of
directors under the Louisiana Business Corporation Law, unless specified price
and procedural requirements were met, business combinations involving us and any
holder of 20% or more of our outstanding voting stock could be required to be
approved by at least:
- 80% of the votes entitled to be cast by holders of the outstanding voting
stock; and
- two-thirds of the votes entitled to be cast by holders of our voting
stock other than the voting stock of the 20% holder.
This provision could be regarded as a deterrent to a takeover of us and
could be applied selectively by our board of directors.
LIMITATION OF DIRECTOR AND OFFICER LIABILITY
Our articles of incorporation contain provisions that eliminate the
personal liability of our directors and officers for:
- monetary damages resulting from breaches of their fiduciary duty other
than liability for breaches of the duty of loyalty, acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law;
- violations under Section 92(D) of the Louisiana Business Corporation Law,
relating to unlawful distributions; or
- any transaction from which the director or officer derived an improper
personal benefit.
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Our articles of incorporation contain provisions requiring the
indemnification of our directors and officers to the fullest extent permitted by
Section 83 of the Louisiana Business Corporation Law, including circumstances in
which indemnification is otherwise discretionary. We believe that these
provisions are necessary to attract and retain qualified persons as directors
and officers.
CLASSIFIED BOARD OF DIRECTORS
Our articles of incorporation provide that if the number of directors
constituting our entire board of directors is increased to twelve or more
members, then at the next meeting of our shareholders at which directors are to
be elected, the board of directors will be divided into three classes, the
members of which will serve staggered three-year terms. We believe that a
classified board of directors could help to ensure the continuity and stability
of our board and the business strategies and policies determined by them. The
classified board provision, if implemented, could have the effect of making the
removal of incumbent directors more time-consuming and could discourage a third
party from making a tender offer or otherwise attempting to obtain control of
us, even though an attempt might be beneficial to us and our shareholders.
ADVANCE NOTICE PROVISIONS FOR PARTICULAR SHAREHOLDER ACTIONS
Our by-laws establish an advance notice procedure with regard to the
nomination, other than by or at the direction of our board or a committee
thereof, of candidates for election as directors. This is called the "nomination
procedure" with respect to the election of directors, or with respect to other
matters to be brought before an annual meeting of our shareholders, the
"business procedure."
The nomination procedure requires that a shareholder give prior written
notice, in proper form, of a planned nomination for our board of directors to
our secretary. The requirements as to the form and timing of that notice are
specified in our by-laws. If the election inspectors determine that a person was
not nominated in accordance with the nomination procedure, the person will not
be eligible for election as a director.
Although our by-laws do not give our board any power to approve or
disapprove shareholder nominations for the election of directors or of any other
business desired by shareholders to be conducted at an annual or any other
meeting, our by-laws may:
- have the effect of precluding a nomination for the election of directors
or precluding the conduct of business at a particular annual meeting if
the proper procedures are not followed; and
- may discourage or deter a third party from conducting a solicitation of
proxies to elect its own slate of directors or otherwise attempting to
obtain control of us, even if the conduct of the solicitation or the
attempt might be beneficial to us and our shareholders.
Under the business procedure, a shareholder seeking to have any business
conducted at an annual meeting must give prior written notice, in proper form,
to our secretary. The requirements as to the form and timing of that notice are
specified in our by-laws. If the chairman or other officer presiding at a
meeting determines that an item of business was not properly brought before the
meeting in accordance with the business procedure, then that item of business
will not be conducted at the meeting.
SUPER MAJORITY PROVISIONS
Our articles of incorporation contain provisions requiring the affirmative
vote of the holders of at least 75% of the voting power of our capital stock to
amend specific provisions of the articles, including provisions relating to the
removal of directors.
Our articles of incorporation require the approval of the holders of at
least 75% of our outstanding shares of our common stock, not including shares
held by a related person, to approve some business combinations and related
transactions. The term "related person" includes any individual, corporation,
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partnership or other entity which owns beneficially, directly or indirectly,
more than five percent of the outstanding shares of our common stock. The term
"business combination" includes, among other things:
- any merger or consolidation of us or a subsidiary of ours which
constitutes more than 50% of our assets, other than a merger or
consolidation which results in our voting securities outstanding
immediately prior to the merger or consolidation continuing to represent
more than 50% of the combined voting power of the voting securities of
the surviving entity;
- any sale, lease, exchange, transfer or other disposition of more than 50%
of our assets;
- any reclassification of our common stock; and
- our liquidation or dissolution.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is First Union
National Bank, Charlotte, North Carolina.
DEPOSITARY SHARES
GENERAL
We may offer fractional shares of preferred stock, rather than full shares
of preferred stock. If we decide to offer fractional shares of preferred stock,
we will issue receipts for depositary shares. Each depositary share will
represent a fraction of a share of a particular series of preferred stock. The
prospectus supplement will indicate that fraction. The shares of preferred stock
represented by depositary shares will be deposited under a depositary agreement
between us and a bank or trust company that meets certain requirements and is
selected by us (the "Bank Depositary"). Each owner of a depositary share will be
entitled to all the rights and preferences of the preferred stock represented by
the depositary share. The depositary shares will be evidenced by depositary
receipts issued pursuant to the depositary agreement. Depositary receipts will
be distributed to those persons purchasing the fractional shares of preferred
stock in accordance with the terms of the offering.
We have summarized selected provisions of a depositary agreement and the
related depositary receipts. The summary is not complete. The forms of the
deposit agreement and the depositary receipts relating to any particular issue
of depositary shares will be filed with the SEC via a Current Report on Form 8-K
prior to our offering of the depositary shares, and you should read such
documents for provisions that may be important to you.
DIVIDENDS AND OTHER DISTRIBUTIONS
If we pay a cash distribution or dividend on a series of preferred stock
represented by depositary shares, the Bank Depositary will distribute such
dividends to the record holders of such depositary shares. If the distributions
are in property other than cash, the Bank Depositary will distribute the
property to the record holders of the depositary shares. However, if the Bank
Depositary determines that it is not feasible to make the distribution of
property, the Bank Depositary may, with our approval, sell such property and
distribute the net proceeds from such sale to the record holders of the
depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If we redeem a series of preferred stock represented by depositary shares,
the Bank Depositary will redeem the depositary shares from the proceeds received
by the Bank Depositary in connection with the redemption. The redemption price
per depositary share will equal the applicable fraction of the redemption price
per share of the preferred stock. If fewer than all the depositary shares are
redeemed, the depositary shares to be redeemed will be selected by lot or pro
rata as the Bank Depositary may determine.
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VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the preferred
stock represented by depositary shares are entitled to vote, the Bank Depositary
will mail the notice to the record holders of the depositary shares relating to
such preferred stock. Each record holder of these depositary shares on the
record date (which will be the same date as the record date for the preferred
stock) may instruct the Bank Depositary as to how to vote the preferred stock
represented by such holder's depositary shares. The Bank Depositary will
endeavor, insofar as practicable, to vote the amount of the preferred stock
represented by such depositary shares in accordance with such instructions, and
we will take all action which the Bank Depositary deems necessary in order to
enable the Bank Depositary to do so. The Bank Depositary will abstain from
voting shares of the preferred stock to the extent it does not receive specific
instructions from the holders of depositary shares representing such preferred
stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the depositary agreement may be amended by agreement between the
Bank Depositary and us. However, any amendment that materially and adversely
alters the rights of the holders of depositary shares will not be effective
unless such amendment has been approved by the holders of at least a majority of
the depositary shares then outstanding. The depositary agreement may be
terminated by the Bank Depositary or us only if (i) all outstanding depositary
shares have been redeemed or (ii) there has been a final distribution in respect
of the preferred stock in connection with any liquidation, dissolution or
winding up of our company and such distribution has been distributed to the
holders of depositary receipts.
CHARGES OF BANK DEPOSITARY
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 Bank Depositary 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 and other taxes and governmental charges and any other
charges, including a fee for the withdrawal of shares of preferred stock upon
surrender of depositary receipts, as are expressly provided in the depositary
agreement to be for their accounts.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of depositary receipts at the principal office of the Bank
Depositary, subject to the terms of the depositary agreement, the owner of the
depositary shares may demand delivery of the number of whole shares of preferred
stock and all money and other property, if any, represented by those depositary
shares. Partial shares of preferred stock will not be issued. 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 Bank Depositary will deliver to
such holder at the same time a new depositary receipt evidencing the excess
number of depositary shares. Holders of preferred stock thus withdrawn may not
thereafter deposit those shares under the depositary agreement or receive
depositary receipts evidencing depositary shares therefor.
MISCELLANEOUS
The Bank Depositary will forward to holders of depositary receipts all
reports and communications from us that are delivered to the Bank Depositary and
that we are required to furnish to the holders of the preferred stock.
Neither the Bank Depositary nor we will be liable if we are prevented or
delayed by law or any circumstance beyond our control in performing our
obligations under the depositary agreement. The obligations of the Bank
Depositary and us under the depositary agreement will be limited to performance
in good faith of our duties thereunder, and we will not be obligated to
prosecute or defend any legal proceeding in respect of any depositary shares or
preferred stock unless satisfactory indemnity is furnished.
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We 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 BANK DEPOSITARY
The Bank Depositary may resign at any time by delivering to us notice of
its election to do so, and we may at any time remove the Bank Depositary. Any
such resignation or removal will take effect upon the appointment of a successor
Bank Depositary and its acceptance of such appointment. Such successor Bank
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of our common stock. Warrants may be
issued independently or together with Debt Securities, preferred stock or common
stock offered by any prospectus supplement and may be attached to or separate
from any such offered securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a bank or trust
company, as warrant agent, all as set forth in the prospectus supplement
relating to the particular issue of warrants. The warrant agent will act solely
as our agent in connection with the warrants and will not assume any obligation
or relationship of agency or trust for or with any holders of warrants or
beneficial owners of warrants. The following summary of certain provisions of
the warrants does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, all provisions of the warrant agreements.
You should refer to the prospectus supplement relating to a particular
issue of warrants for the terms of and information relating to the warrants,
including, where applicable:
(1) the number of shares of common stock purchasable upon exercise of
the warrants and the price at which such number of shares of common stock
may be purchased upon exercise of the warrants;
(2) the date on which the right to exercise the warrants shall
commence and the date on which such right shall expire (the "Expiration
Date");
(3) United States Federal income tax consequences applicable to the
warrants;
(4) the amount of the warrants outstanding as of the most recent
practicable date; and
(5) any other terms of the warrants.
Warrants will be offered and exercisable for U.S. dollars only. Warrants
will be issued in registered form only. Each warrant will entitle its holder to
purchase such number of shares of common stock at such exercise price as shall
in each case be set forth in, or calculable from, the prospectus supplement
relating to the warrants. The exercise price may be subject to adjustment upon
the occurrence of events described in such prospectus supplement. After the
close of business on the Expiration Date (or such later date to which we may
extend such Expiration Date), unexercised warrants will become void. The place
or places where, and the manner in which, warrants may be exercised will be
specified in the prospectus supplement relating to such warrants.
Prior to the exercise of any warrants, holders of the warrants will not
have any of the rights of holders of common stock, including the right to
receive payments of any dividends on the common stock purchasable upon exercise
of the warrants, or to exercise any applicable right to vote.
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SELLING SHAREHOLDERS
Stone & Webster, Incorporated, a Debtor-in-Possession, is a Delaware
corporation. Stone & Webster Group Limited and Stone & Webster Canada Limited
are wholly-owned subsidiaries of Stone & Webster, Incorporated. Effective July
14, 2000, we completed the acquisition of substantially all the assets and
assumption of certain liabilities of Stone & Webster, Incorporated and its
subsidiaries for a total purchase price of approximately $38 million in cash and
approximately 2,231,773 shares of our common stock. In order to induce Stone &
Webster and its subsidiaries to enter into a purchase agreement with us for
substantially all of such assets, we agreed to provide Stone & Webster and its
subsidiaries certain registration rights.
The following table sets forth information relating to the selling
shareholders' beneficial ownership of shares of our common stock:
<TABLE>
<CAPTION>
SHARES OF
SELLING SHAREHOLDER COMMON STOCK OWNED
------------------- ------------------
<S> <C>
Stone & Webster, Incorporated............................... 1,707,298
Stone & Webster Group Limited............................... 369,837
Stone & Webster Canada Limited.............................. 154,638
</TABLE>
A portion of the proceeds of the sales by the selling shareholders will be
paid into an escrow for our benefit in accordance with the purchase agreement
with Stone & Webster.
The prospectus supplement relating to any shares of common stock offered by
the selling shareholder will set forth the number of shares of common stock
being offered for the selling shareholder's account as well as the number of
such shares and the percentage of the class, if greater than one percent, to be
owned by the selling shareholder after completion of the offering.
All expenses incurred with the registration of shares of common stock owned
by the selling shareholder will be borne by us; provided that, we will not be
obligated to pay any underwriting fees, discounts, or commissions in connection
with such registration.
PLAN OF DISTRIBUTION
Both the selling shareholder and we may sell securities pursuant to this
prospectus in or outside the United States (a) through underwriters or dealers,
(b) through agents or (c) directly to one or more purchasers, including our
existing stockholders in a rights offering. The prospectus supplement relating
to any offering of securities will include the following information:
- the terms of the offering
- the names of any underwriters, dealers or agents
- the name or names of any managing underwriter or underwriters
- the purchase price of the securities from us
- the net proceeds to us from the sale of the securities
- any delayed delivery arrangements
- any underwriting discounts, commissions and other items constituting
underwriters' compensation
- any initial public offering price
- any discounts or concessions allowed or reallowed or paid to dealers
- any commissions paid to agents
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SALE THROUGH UNDERWRITERS OR DEALERS
If we use underwriters in the sale, the underwriters will acquire the
securities for their own account. The underwriters may resell the securities
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and the
underwriters will be obligated to purchase all the offered securities if they
purchase any of them. The underwriters may change from time to time any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, which means that selling concessions
allowed to syndicate members or other broker-dealers for the offered securities
sold for their account may be reclaimed by the syndicate if the offered
securities are repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise affect the
market price of the offered securities, which may be higher than the price that
might otherwise prevail in the open market. If commenced, the underwriters may
discontinue these activities at any time.
If we or the selling shareholder use dealers in the sale of securities, the
selling shareholder and we will sell the securities to them as principals. They
may then resell those securities to the public at varying prices determined by
the dealers at the time of resale.
DIRECT SALES AND SALES THROUGH AGENTS
We may sell the securities directly. In this case, no underwriters or
agents would be involved. We may sell securities upon the exercise of rights
that we may issue to our securityholders. We may also sell the securities
directly to institutional investors or others who may be deemed to be
underwriters within the meaning of the Securities Act with respect to any sale
of those securities.
We may sell the securities through agents we designate from time to time.
Unless we inform you otherwise in the prospectus supplement, any agent will
agree to use its reasonable best efforts to solicit purchases for the period of
its appointment.
DELAYED DELIVERY CONTRACTS
If we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
GENERAL INFORMATION
We may have agreements with the agents, dealers and underwriters to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments that the agents,
dealers or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with or perform
services for us in the ordinary course of their business.
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LEGAL MATTERS
Our legal counsel, Vinson & Elkins L.L.P., Houston, Texas, will pass upon
certain legal matters in connection with the offered securities. The validity of
issuance of the offered securities and other matters arising under Louisiana law
are being passed upon by Kantrow, Spaht, Weaver & Blitzer (A Professional Law
Corporation), Baton Rouge, Louisiana. Any underwriters will be advised about
other issues relating to any offering by their own legal counsel.
EXPERTS
The financial statements of The Shaw Group Inc. as of and for the year
ended August 31, 1999 incorporated by reference in this prospectus and elsewhere
in the registration statement have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated herein in reliance upon the authority of said firm
as experts in accounting and auditing in giving such reports.
The financial statements included in and incorporated by reference in this
prospectus and elsewhere in the registration statement to the extent and for the
periods indicated in their reports have been audited by Arthur Andersen LLP and
Hannis T. Bourgeois, LLP, independent public accountants, and are included in
this prospectus in reliance upon the authority of said firms as experts in
accounting and auditing in giving said reports. The single jointly signed
auditors' report is considered to be the equivalent of two separately signed
auditors' reports. Thus each firm represents that it has complied with generally
accepted auditing standards and is in a position that would justify being the
only signatory of the report.
The financial statements of Stone & Webster, Incorporated incorporated by
reference in this prospectus from our report on Form 8-K dated September 13,
2000 have been audited by PriceWaterhouseCoopers, LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving such reports.
27
<PAGE> 30
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses payable by The Shaw Group Inc.
(sometimes referred to as the "Company" in this Part II of the Registration
Statement) in connection with the issuance and distribution of the securities.
All the amounts shown are estimates, except the registration fee.
<TABLE>
<S> <C>
Registration fee............................................ $131,984
Fees and expenses of accountants............................ 75,000
Fees and expenses of legal counsel.......................... 125,000
Fees and expenses of Trustee and counsel.................... 15,000
Fees of rating agencies..................................... 75,000
Printing and engraving expenses............................. 125,000
Blue Sky fees and expenses (including counsel).............. 5,000
Miscellaneous............................................... 48,016
Total............................................. $600,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 83 of the Louisiana Business Corporation Law or the LBCL, provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, other than an action by or in the
right of the corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
business, foreign or nonprofit corporation, partnership, joint venture or other
enterprise. The indemnity may include expenses, including attorney fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding, if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. Section
83 further provides that a Louisiana corporation may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions except that no indemnification is permitted without judicial approval
if the director or officer shall have been adjudged to be liable for willful or
intentional misconduct in the performance of his duty to the corporation. Where
an officer or director is successful on the merits or otherwise in any defense
of any action referred to above or any claim therein, the corporation must
indemnify him against such expenses that such officer or director actually
incurred. Section 83 permits a corporation to pay expenses incurred by the
officer or director in defending an action, suit or proceeding in advance of the
final disposition thereof if approved by the board of directors.
Pursuant to Section 83 of the LBCL, the registrant has adopted provisions
in its articles of incorporation which require the registrant to indemnify its
directors and officers to the fullest extent permitted by the LBCL.
The registrant has entered into indemnification agreements with its
directors and certain of its officers which provide that the registrant will, if
certain conditions are met and the director or officer acted in accordance with
the applicable standards and subject to certain procedures and exceptions,
indemnify the persons for claims, judgments and related expenses resulting from
their service on behalf of the registrant and its affiliated entities in any
pending, threatened or completed action, suit or proceeding, whether civil
administrative or criminal, except where (1) the registrant is prohibited by law
from providing such indemnification; (2) payment of the indemnification amounts
has been made under an insurance policy; or (3) the director or officer gained a
personal profit to which he or she was not legally entitled including profits
arising from the violation of certain securities laws.
II-1
<PAGE> 31
ITEM 16. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated herein by reference to a prior
filing of the Company under the Securities Act or the Exchange Act as indicated
in parentheses:
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBITS
------- --------
<C> <S>
**1.1 -- Underwriting Agreement (Debt Securities).
**1.2 -- Underwriting Agreement (Common Stock).
**1.3 -- Underwriting Agreement (Preferred Stock).
**1.4 -- Underwriting Agreement (Warrants)
2.1 -- Asset Purchase Agreement By and Among Stone & Webster,
Incorporated, certain Subsidiaries of Stone & Webster,
Incorporated and The Shaw Group Inc., dated as of July
14, 2000 (incorporated by reference to Exhibit 2.1 to the
Company's Current Report on Form 8-K as filed with the
SEC July 28, 2000.
4.1 -- Restated Articles of Incorporation of the Company, dated
December 9, 1993 (incorporated by reference to Exhibit
3.1 to the Company's Annual Report on Form 10-K for the
fiscal year ended August 31, 1999).
4.2 -- Amended and Restated By-Laws of the Company (incorporated
by reference to Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the fiscal year ended August 31,
1999).
***4.3 -- Registration Rights Agreement by and between The Shaw
Group Inc., Stone & Webster, Incorporated and certain
subsidiaries of Stone & Webster, Incorporated, dated as
of July 14, 2000.
***4.4 -- Amendment No. 1 to the Registration Rights Agreement by
and between The Shaw Group Inc., Stone & Webster,
Incorporated and certain Subsidiaries of Stone & Webster,
Incorporated, dated as of August 18, 2000.
**4.5 -- Senior Indenture.
**4.6 -- Subordinated Indenture.
**4.7 -- Form of Warrant Agreement.
**4.8 -- Form of Securities.
**4.9 -- Form of Depositary Agreement.
**4.10 -- Form of Depositary Receipt.
**5.1 -- Opinion of Vinson & Elkins L.L.P.
**5.2 -- Opinion of Kantrow, Spaht, Weaver & Blitzer (A
Professional Law Corporation)
***12.1 -- Calculation of Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit
5.1)
23.3 -- Consent of Kantrow, Spaht, Weaver & Blitzer (A
Professional Law Corporation) (included in Exhibit 5.2)
*23.4 -- Consent of PricewaterhouseCoopers, LLP.
*23.5 -- Consent of Hannis T. Bourgeois, LLP.
***24.1 -- Powers of Attorney (included on the signature pages of
this Registration Statement).
**25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Senior Indenture.
**25.2 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Subordinated Indenture.
</TABLE>
---------------
* Filed herewith.
** To be filed by amendment or in a Current Report on Form 8-K.
*** Previously filed.
II-2
<PAGE> 32
ITEM 17. UNDERTAKINGS.
(a) Each undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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% 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 paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 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.
(b) Each undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Each registrant hereby undertakes 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,
where applicable, each filing of an employee benefits 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.
II-3
<PAGE> 33
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to any charter provision, by-law, contract, arrangement,
statute, or otherwise, each registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted against the registrant by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-4
<PAGE> 34
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Baton Rouge, State of Louisiana, on the 13th day of
September, 2000.
THE SHAW GROUP INC.
By /s/ ROBERT L. BELK
-----------------------------------
Robert L. Belk
Executive Vice President,
Chief Financial Officer
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 13, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* President, Chief Executive Officer and
----------------------------------------------------- Director (Principal Executive Officer)
J. M. Bernhard, Jr.
/s/ ROBERT L. BELK Executive Vice President, Chief Financial
----------------------------------------------------- Officer and Treasurer (Principal Financial
Robert L. Belk Officer and Principal Accounting Officer)
* Director
-----------------------------------------------------
Albert McAlister
* Director
-----------------------------------------------------
L. Lane Grigsby
* Director
-----------------------------------------------------
David W. Hoyle
* Director
-----------------------------------------------------
John W. Sinders, Jr.
* Director
-----------------------------------------------------
William H. Grigg
*By: /s/ ROBERT L. BELK
------------------------------------------------
Robert L. Belk
As Attorney-in-Fact
</TABLE>
II-5
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Baton Rouge, State of Louisiana, on the 13th day of
September, 2000.
ACL PIPING, INC.
ASSOCIATED VALVE, INC.
B.F. SHAW, INC.
C.B. P. ENGINEERING CORP.
EAGLE INDUSTRIES, INC.
FIELD SERVICES, INC.
LONE STAR FABRICATORS, INC.
NAPTECH PS CORPORATION
PROSPECT INDUSTRIES (HOLDINGS) INC.
SAON PROPERTIES, INC.
SECORP, INC.
SHAW ALLOY PIPING PRODUCTS, INC.
SHAW CAPITAL, INC.
SHAW CONNEX, INC.
SHAW CONSTRUCTORS, INC.
SHAW ENERGY SERVICES, INC.
SHAW FABRICATORS, INC.
SHAW FRONEK A/DE, INC.
SHAW FRONEK COMPANY, INC.
SHAW FRONEK FABRICATION, INC.
SHAW FRONEK POWER SERVICES, INC.
SHAW FVF, INC.
SHAW GRP OF CALIFORNIA
SHAW GLOBAL ENERGY SERVICES, INC.
SHAW INDUSTRIAL SUPPLY CO., INC.
SHAW INTERNATIONAL, INC.
SHAW MAINTENANCE, INC.
SHAW MANAGED SERVICES, INC.
SHAW MANUFACTURING AND SERVICES,
INC.
SHAW NAPTECH, INC.
SHAW PIPE SHIELDS, INC.
SHAW PROCESS FABRICATORS, INC.
SHAW POWER SERVICES, INC.
SHAW PROCESS AND INDUSTRIAL
GROUP, INC.
SHAW SERVICES, INC.
SHAW SUNLAND FABRICATORS, INC.
SHAW WORD INDUSTRIES
FABRICATORS, INC.
STONE & WEBSTER
INTERNATIONAL, INC.
STONE & WEBSTER PURCHASING, INC.
STONE & WEBSTER HOLDING ONE, INC.
STONE & WEBSTER HOLDING TWO, INC.
STONE & WEBSTER , INC.
II-6
<PAGE> 36
SWINC ACQUISITION FOUR, INC.
WELDING TECHNOLOGY & SUPPLY, INC.
WORLDWIDE INDUSTRIAL
CONSTRUCTORS, INC.
By: /s/ ROBERT L. BELK
----------------------------------
Robert L. Belk
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 13, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chief Executive Officer (Principal Executive
----------------------------------------------------- Officer)
J.M. Bernhard, Jr.
/s/ ROBERT L. BELK Vice President and Director (Principal
----------------------------------------------------- Financial and Accounting Officer)
Robert L. Belk
* Secretary and Director
-----------------------------------------------------
Gary P. Graphia
*By: /s/ ROBERT L. BELK
------------------------------------------------
Robert L. Belk
As Attorney-in-Fact
</TABLE>
II-7
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Baton Rouge, State of Louisiana, on the 13th day of
September, 2000.
IRM/NAPTECH JOINT VENTURE, L.L.C.
By: SHAW NAPTECH, INC.
NAPTECH PS CORPORATION
As Members
By: /s/ ROBERT L. BELK
----------------------------------
Robert L. Belk
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 13, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chief Executive Officer (Principal Executive
----------------------------------------------------- Officer)
J.M. Bernhard, Jr.
/s/ ROBERT L. BELK Vice President and Director (Principal
----------------------------------------------------- Financial and Accounting Officer)
Robert L. Belk
* Director
-----------------------------------------------------
Gary P. Graphia
*By: /s/ ROBERT L. BELK
------------------------------------------------
Robert L. Belk
As Attorney-in-Fact
</TABLE>
II-8
<PAGE> 38
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Baton Rouge, State of Louisiana, on the 13th day of
September, 2000.
SWINC ACQUISITION FIVE, L.L.C.
By: STONE & WEBSTER, INC.
As Member
By: /s/ ROBERT L. BELK
----------------------------------
Robert L. Belk
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 13, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chief Executive Officer (Principal Executive
----------------------------------------------------- Officer)
J.M. Bernhard, Jr.
/s/ ROBERT L. BELK Vice President and Director (Principal
----------------------------------------------------- Financial and Accounting Officer)
Robert L. Belk
* Director
-----------------------------------------------------
Gary P. Graphia
*By: /s/ ROBERT L. BELK
------------------------------------------------
Robert L. Belk
As Attorney-in-Fact
</TABLE>
II-9
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Baton Rouge, State of Louisiana, on the 13th day of
September, 2000.
SHAW JV HOLDINGS, INC.
STONE & WEBSTER ASIA, INC.
STONE & WEBSTER CONSTRUCTION, INC.
By: /s/ ROBERT L. BELK
----------------------------------
Robert L. Belk
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 13, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chief Executive Officer (Principal Executive
----------------------------------------------------- Officer)
J.M. Bernhard, Jr.
/s/ ROBERT L. BELK Vice President (Principal Financial and
----------------------------------------------------- Accounting
Robert L. Belk Officer)
* Director
-----------------------------------------------------
N. Andrew Dupuy, Jr.
* Director
-----------------------------------------------------
Richard F. Gill
*By: /s/ ROBERT L. BELK
------------------------------------------------
Robert L. Belk
As Attorney-in-Fact
</TABLE>
II-10
<PAGE> 40
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBITS
------- --------
<C> <S>
**1.1 -- Underwriting Agreement (Debt Securities).
**1.2 -- Underwriting Agreement (Common Stock).
**1.3 -- Underwriting Agreement (Preferred Stock).
**1.4 -- Underwriting Agreement (Warrants)
2.1 -- Asset Purchase Agreement By and Among Stone & Webster,
Incorporated, certain Subsidiaries of Stone & Webster,
Incorporated and The Shaw Group Inc., dated as of July
14, 2000 (incorporated by reference to Exhibit 2.1 to the
Company's Current Report on Form 8-K as filed with the
SEC July 28, 2000.
4.1 -- Restated Articles of Incorporation of the Company, dated
December 9, 1993 (incorporated by reference to Exhibit
3.1 to the Company's Annual Report on Form 10-K for the
fiscal year ended August 31, 1999).
4.2 -- Amended and Restated By-Laws of the Company (incorporated
by reference to Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the fiscal year ended August 31,
1999).
***4.3 -- Registration Rights Agreement by and between The Shaw
Group Inc., Stone & Webster, Incorporated and certain
subsidiaries of Stone & Webster, Incorporated, dated as
of July 14, 2000.
***4.4 -- Amendment No. 1 to the Registration Rights Agreement by
and between The Shaw Group Inc., Stone & Webster,
Incorporated and certain Subsidiaries of Stone & Webster,
Incorporated, dated as of August 18, 2000.
**4.5 -- Senior Indenture.
**4.6 -- Subordinated Indenture.
**4.7 -- Form of Warrant Agreement.
**4.8 -- Form of Securities.
**4.9 -- Form of Depositary Agreement.
**4.10 -- Form of Depositary Receipt.
**5.1 -- Opinion of Vinson & Elkins L.L.P.
**5.2 -- Opinion of Kantrow, Spaht, Weaver & Blitzer (A
Professional Law Corporation)
***12.1 -- Calculation of Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit
5.1)
23.3 -- Consent of Kantrow, Spaht, Weaver & Blitzer (A
Professional Law Corporation) (included in Exhibit 5.2)
*23.4 -- Consent of PricewaterhouseCoopers, LLP.
*23.5 -- Consent of Hannis T. Bourgeois, LLP.
***24.1 -- Powers of Attorney (included on the signature pages of
this Registration Statement).
**25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Senior Indenture.
**25.2 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Subordinated Indenture.
</TABLE>
---------------
* Filed herewith.
** To be filed by amendment or in a Current Report on Form 8-K.
*** Previously filed.
