<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 22, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
SOUTHWEST GAS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
CALIFORNIA 88-0085720
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
------------------------
5241 SPRING MOUNTAIN ROAD
P.O. BOX 98510
LAS VEGAS, NEVADA 89193-8510
(702) 876-7237
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF EACH
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
GEORGE C. BIEHL
SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND CORPORATE SECRETARY
SOUTHWEST GAS CORPORATION
5241 SPRING MOUNTAIN ROAD
P.O. BOX 98510
LAS VEGAS, NEVADA 89193-8510
(702) 876-7237
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
---------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C>
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED PRICE(5) REGISTRATION FEE(5)
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Debt Securities....................................................... (1) NA
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Preferred Stock (without par value)................................... (1)(2) NA
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Depositary Shares..................................................... (1)(2)(3) NA
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Common Stock ($1 par value)........................................... (1)(4) NA
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Total................................................................. $250,000,000 $75,758
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</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
(Footnotes from preceding page)
(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $250,000,000 or, if
any Debt Securities are issued with original issue discount, such greater
amount as shall result in an aggregate offering price of $250,000,000. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) Shares of Preferred Stock and Depositary Shares may be issuable upon
conversion of Debt Securities registered hereby.
(3) In the event Southwest Gas Corporation elects to offer to the public
fractional interests in shares of the Preferred Stock registered hereunder,
Depository Receipts will be distributed to those persons purchasing such
fractional interests, and the shares of Preferred Stock will be issued to
the Depositary under any such Deposit Agreement.
(4) Shares of Common Stock may be issuable in primary offerings and upon
conversion of the Preferred Stock or Debt Securities registered hereby.
(5) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended. Pursuant to Rule 429, $20,829 of the
registration fee was previously paid in connection with Registration
Statement Nos. 33-55621 and 33-62143. The amount of the Securities being
carried forward is $60,400,000.
AS PERMITTED BY RULE 429, THE PROSPECTUS WITH RESPECT TO THIS REGISTRATION
STATEMENT ALSO RELATES TO SOUTHWEST GAS CORPORATION'S REGISTRATION STATEMENTS ON
FORM S-3 (33-55621 AND 33-62143).
<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED OCTOBER 22, 1996
PROSPECTUS
$250,000,000
SOUTHWEST GAS CORPORATION
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
Southwest Gas Corporation (the "Company") may offer from time to time, in
one or more series, its unsecured debt securities (the "Debt Securities"),
which, if issued, will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company, shares of its Preferred Stock,
without par value (the "Preferred Stock"), and shares of its Common Stock, $1
par value (the "Common Stock"). The Debt Securities, the Preferred Stock and the
Common Stock are collectively referred to herein as the "Securities." Securities
will have a maximum aggregate offering price of $250,000,000 and will be offered
on terms to be determined at the time of offering.
In the case of Debt Securities, the specific title, the aggregate principal
amount, the purchase price, the maturity, the rate (or method of calculation)
and time of payment of interest, if any, any redemption or sinking fund
provisions, any conversion provisions, any covenants and any other specific term
of the Debt Securities will be set forth in an accompanying supplement to this
Prospectus (each, a "Prospectus Supplement"). In the case of Preferred Stock,
the specific number of shares, designation, liquidation preference per share,
issuance price, dividend rate (or method of calculation), dividend payment
dates, any redemption or sinking fund provisions, any conversion rights and
other specific terms of the series of Preferred Stock will be set forth in the
accompanying Prospectus Supplement. In addition, the Prospectus Supplement will
describe whether interests in the Preferred Stock will be represented by
depositary shares (the "Depositary Shares") evidenced by depositary receipts
("Depositary Receipts"). In the case of Common Stock, the specific number of
shares and issuance price per share will be set forth in the accompanying
Prospectus Supplement. The Prospectus Supplement will also disclose whether the
Securities will be listed on a national securities exchange and if they are not
to be listed, the possible effects thereof on their marketability. If so
specified in the accompanying Prospectus Supplement, Securities may be issued,
in whole or in part, in book-entry form.
Securities may be sold directly, through agents from time to time, through
underwriters and/or dealers or through a combination of such methods. If any
agent of the Company or any underwriter is involved in the sale of the
Securities, the name of such agent or underwriter and any applicable commission
or discount will be set forth in the accompanying Prospectus Supplement. See
"Plan of Distribution."
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY SUPPLEMENT HERETO.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1996
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at Room 1024 of the offices of the
Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
should be available for inspection and copying at the regional offices of the
Commission located at Seven World Trade Center, 13th Floor, New York, New York
10048 and Suite 1400, Northwestern Atrium Center, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material can be obtained from the
principal offices of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Reports, proxy materials and other
information concerning the Company may also be inspected at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New York 10005 and at the
offices of the Pacific Stock Exchange, 301 Pine Street, San Francisco,
California 94104. In addition, the Commission maintains a Web Site that contains
reports, proxy statements and information statements as well as other
information regarding the Company and other registrants that file electronically
with the Commission at http://www.sec.gov.
This Prospectus does not contain all the information set forth in the
Registration Statement and exhibits thereto which the Company has filed with the
Commission under the Securities Act of 1933, and reference is hereby made to
such Registration Statement, including the exhibits thereto.
------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated herein by reference the following documents of the
Company filed with the Commission: (1) Annual Report on Form 10-K for the fiscal
year ended December 31, 1995; (2) Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996 and June 30, 1996, (3) Current Reports on Form 8-K
dated January 8, 1996, February 14, 1996, March 5, 1996, May 2, 1996, July 19,
1996, July 26, 1996 and July 31, 1996; and (4) all documents filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Securities.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
in a Prospectus Supplement or in any subsequently filed document which is
incorporated by reference herein modifies or supersedes such statements. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The information relating to the Company contained in this Prospectus
summarizes, is based upon, or refers to, information and financial statements
contained in one or more of the documents incorporated by reference herein;
accordingly, such information contained herein is qualified in its entirety by
reference to such incorporated documents and should be read in conjunction
therewith.
The Company will provide without charge to each person, including any
beneficial holder, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all the foregoing
documents incorporated by reference herein, including exhibits specifically
incorporated by reference in such documents but excluding all other exhibits to
such documents. Requests should be directed to George C. Biehl, Senior Vice
President, Chief Financial Officer and Corporate Secretary, Southwest Gas
Corporation, 5241 Spring Mountain Road, P.O. Box 98510, Las Vegas, Nevada
89193-8510, telephone number (702) 876-7237.
2
<PAGE> 5
THE COMPANY
The Company, a California corporation, is engaged in the business of
purchasing, transporting, and distributing natural gas in portions of Arizona,
Nevada and California. Its several service areas are geographically as well as
economically diverse. The Company is the largest distributor in Arizona,
distributing and transporting natural gas in most of southern, central and
northwestern Arizona. The Company is also the largest distributor and
transporter of natural gas in Nevada. The Company also distributes and
transports natural gas in portions of California, including the Lake Tahoe area
and the high desert and mountain areas in San Bernardino County. In April 1996,
the Company completed the acquisition of Northern Pipeline Construction Co.,
which provides local gas distribution companies with installation, replacement
and maintenance services for underground natural gas distribution systems.
In July 1996, the Company completed the sale of PriMerit Bank ("PriMerit"
or the "Bank") to Norwest Bank Nevada, FSB. Previously, the Company engaged in
financial services activities through the Bank. Activities related to the Bank
are reported as discontinued operations.
The Company is subject to regulation by the Arizona Corporation Commission,
the Public Service Commission of Nevada (the "PSCN") and the California Public
Utilities Commission (the "CPUC"). The CPUC regulates the issuance of all
securities by the Company, with the exception of short-term borrowings. Certain
of the Company's accounting practices, transmission facilities and rates are
subject to regulation by the Federal Energy Regulatory Commission.
The executive offices of the Company are located at 5241 Spring Mountain
Road, P.O. Box 98510, Las Vegas, Nevada 89193-8510, telephone number (702)
876-7237.
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement, the Company
intends to use the net proceeds from the sale of Securities offered hereby to
retire indebtedness and for general corporate purposes, including the
acquisition of property for the construction, completion, extension or
improvement of the Company's pipeline systems and facilities located in and
around the communities it serves.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges for
(a) the continuing operations of the Company and (b) the continuing operations
of the Company adjusted for interest allocated to the discontinued operations of
PriMerit.
<TABLE>
<CAPTION>
FOR THE TWELVE FOR THE YEAR ENDED DECEMBER 31,
MONTHS ENDED -----------------------------------------
JUNE 30, 1996 1995 1994 1993 1992 1991
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratios of earnings to fixed charges(1):
Continuing operations................. 1.00 1.06 1.69 1.47 2.21 1.70
Adjusted for interest allocated to
discontinued operations............ 1.00 1.05 1.61 1.40 2.03 1.61
</TABLE>
- ---------------
(1) For purposes of computing the ratios of earnings to fixed charges, earnings
are defined as the sum of pretax income from continuing operations plus
fixed charges. Fixed charges consist of all interest expense including
capitalized interest, one-third of rent expense (which approximates the
interest component of such expense) and amortized debt costs.
3
<PAGE> 6
The following table sets forth the ratios of earnings to combined fixed
charges and preferred and preference stock dividends for (a) the continuing
operations of the Company and (b) the continuing operations of the Company
adjusted for interest allocated to the discontinued operations of PriMerit.
<TABLE>
<CAPTION>
FOR THE TWELVE FOR THE YEAR ENDED DECEMBER 31,
MONTHS ENDED -----------------------------------------
JUNE 30, 1996 1995 1994 1993 1992 1991
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratios of earnings to combined fixed
charges and preferred and preference
stock dividends(1):
Continuing operations................. 1.00 1.05 1.67 1.43 2.12 1.62
Adjusted for interest allocated to
discontinued operations............ 1.00 1.04 1.59 1.37 1.96 1.54
</TABLE>
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(1) See Note 1 above. Preferred and preference stock dividends have been
adjusted to represent the pretax earnings necessary to cover such dividend
requirements.
DESCRIPTION OF DEBT SECURITIES
Debt Securities may be issued from time to time in series under an
indenture (the "Indenture") between the Company and Harris Trust and Savings
Bank, as trustee (the "Trustee"). The Indenture is filed as an exhibit to and
incorporated by reference in the Registration Statement of which this Prospectus
is a part. As used under this caption, unless the context otherwise requires,
Offered Debt Securities shall mean the Debt Securities offered by this
Prospectus and the accompanying Prospectus Supplement. The statements under this
caption are brief summaries of certain provisions contained in the Indenture, do
not purport to be complete and are qualified in their entirety by reference to
the Indenture, including the definition therein of certain terms, a copy of
which is included or incorporated by reference as an exhibit to the Registration
Statement of which this Prospectus is a part. Capitalized terms used herein and
not defined shall have the meanings assigned to them in the Indenture. The
following sets forth certain general terms and provisions of the Debt
Securities. Further terms of the Offered Debt Securities will be set forth in
the Prospectus Supplement.
GENERAL
The Indenture provides for the issuance of Debt Securities in series, and
does not limit the principal amount of Debt Securities which may be issued
thereunder.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Offered Debt Securities in respect
of which this Prospectus is being delivered: (a) the title of the Offered Debt
Securities; (b) whether any of the Offered Debt Securities are to be issuable in
bearer form or permanent global form and, if so, the terms and conditions, if
any, upon which interests in such Offered Debt Securities in such bearer form or
global form may be exchanged, in whole or in part, for the Offered Debt
Securities represented thereby; (c) the person to whom any interest in any
Offered Debt Security of the series shall be payable if other than the person in
whose name the Offered Debt Security is registered on the Regular Record Date;
(d) the date or dates on which the Offered Debt Securities will mature; (e) the
rate or rates at which the Offered Debt Securities will bear interest, if any;
(f) the date or dates from which any such interest will accrue, the Interest
Payment Dates on which any such interest on the Offered Debt Securities will be
payable and the Regular Record Date for any interest payable on any Interest
Payment Date; (g) each office or agency where the principal of, premium (if any)
and interest on the Offered Debt Securities will be payable; (h) the period or
periods within which, the events upon the occurrence of which, and the price or
prices at which, the Offered Debt Securities may, pursuant to any optional or
mandatory provisions, be redeemed or purchased, in whole or in part, by the
Company and any terms and conditions relevant thereto; (i) the obligation of the
Company, if any, to redeem or repurchase the Offered Debt Securities at the
option of the Holders; (j) the denominations in which any Offered Debt
Securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (k) the currency or currencies, including
4
<PAGE> 7
composite currencies, of payment of principal of and any premium and interest on
the Offered Debt Securities, if other than U. S. Dollars; (l) any index or
formula used to determine the amount of payments of principal of and any premium
and interest on the Offered Debt Securities; (m) if other than the principal
amount thereof, the portion of the principal amount of the Offered Debt
Securities of the series which will be payable upon declaration of the
acceleration of the Maturity thereof; (n) any provisions relating to the
conversion or exchange of the Offered Debt Securities into Common Stock,
Preferred Stock or into Debt Securities of another series; (o) any Events of
Default with respect to the Offered Debt Securities, if not otherwise set forth
under "Events of Default"; (p) any material covenants with respect to the
Offered Debt Securities; and (q) any other terms of the Offered Debt Securities
not inconsistent with the provisions of the Indenture.
Debt Securities may be issued at a discount from their principal amount.
Federal income tax considerations and other special considerations applicable to
any such Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
Debt Securities may be issued in bearer form, with or without coupons.
Federal income tax considerations and other special considerations applicable to
bearer securities will be described in the applicable Prospectus Supplement.
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be exchanged
for or converted into shares of Common Stock, Preferred Stock or Debt Securities
of another series will be set forth in the Prospectus Supplement relating
thereto.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement, payment
of principal, premium, if any, and interest on the Debt Securities will be
payable, and the exchange of and the transfer of Debt Securities will be
registerable, at the office or agency of the Company maintained for such purpose
in New York, New York and at any other office or agency maintained for such
purpose. Unless otherwise indicated in the applicable Prospectus Supplement,
Debt Securities will be issued in denominations of $1,000 or integral multiples
thereof. No service charge will be made for any registration of transfer or
exchange of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith.
All moneys paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security which remain
unclaimed for two years after such principal, premium or interest has become due
and payable may be repaid to the Company and, thereafter, the Holder of such
Debt Security may look only to the Company for payment thereof.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Global Securities that will be deposited with a Debt Depositary or its nominee
identified in the applicable Prospectus Supplement. In such a case, one or more
Global Securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal amount of Outstanding Debt
Securities of the series to be represented by such Global Security or
Securities. Each Global Security will be deposited with such Debt Depositary or
nominee or a custodian therefor 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 Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be transferred to, or registered or
exchanged for Debt Securities registered in the name of, any Person other than
the Debt Depositary for such Global Security or any nominee of such Debt
Depositary, and no such transfer may be registered, unless (a) the Debt
Depositary has notified the Company that it is
5
<PAGE> 8
unwilling or unable to continue as Debt Depositary for such Global Security or
has ceased to be qualified to act as such as required by the Indenture, (b) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable and exchangeable, and such
transfers shall be registrable, or (c) there shall exist such circumstances, if
any, as may be described in the applicable Prospectus Supplement. All Debt
Securities issued in exchange for a Global Security or any portion thereof will
be registered in such names as the Debt Depositary may direct.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company expects
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Debt Depositary will be represented by a Global Security
registered in the name of such Debt Depositary or its nominee. Upon the issuance
of such Global Security, and the deposit of such Global Security with or on
behalf of the Debt Depositary for such Global Security, the Debt Depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of institutions that have accounts with such Debt Depositary or its
nominee ("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in such Global Security will be limited to participants or Persons
that may hold interests through participants. Ownership of beneficial interests
by participants in such Global Security will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by the
Debt Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by Persons that hold through participants will
be shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The foregoing
limitations and such laws may impair the ability to transfer beneficial
interests in such Global Securities.
So long as the Debt Depositary for a Global Security, or its nominee, is
the registered owner of such Global Security, such Depositary or such nominee,
as the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certified form and will not be
considered the Holders thereof for any purposes under the Indenture.
Accordingly, each Person owning a beneficial interest in such Global Security
must rely on the procedures of the Debt Depositary and, if such Person is not a
participant, on the procedures of the participant through which such Person owns
its interest, to exercise any rights of a Holder under the Indenture. The
Company understands that under existing industry practices, if the Company
requests any action of Holders or an owner of a beneficial interest in such
Global Security desires to give any notice or take any action a Holder is
entitled to give or take under the Indenture, the Debt Depositary would
authorize the participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such participants
to give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Notwithstanding any other provisions to the contrary in the Indenture, the
rights of the beneficial owners of the Debt Securities to receive payment of the
principal and premium, if any, of and interest on such Debt Securities, on or
after the respective due dates expressed in such Debt Securities, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
beneficial owners.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
6
<PAGE> 9
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any Holders of Outstanding Debt
Securities, may consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to, any Person, and any other Person may
consolidate with or merge into, or transfer or lease its assets substantially as
an entirety to, the Company, provided (a) that the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or
which acquires or leases the assets of the Company substantially as an entirety
is a Person organized and existing under the laws of any United States
jurisdiction and assumes the Company's obligations on the Debt Securities and
under the Indenture, (b) that after giving effect to such transaction no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing, and (c) that
certain other conditions are met.
COVENANTS OF THE COMPANY
The applicable Prospectus Supplement will describe any material covenants
in respect of a series of Offered Debt Securities. Other than the covenants of
the Company included in the Indenture as described above or as described in the
applicable Prospectus Supplement, there are no covenants or provisions in the
Offered Debt Securities or the Indenture that limit or restrict the Company's
business or operations, the pledging of the Company's assets or the incurrence
of indebtedness by the Company or that may afford Holders protection in the
event of a highly leveraged transaction or leveraged buyout involving the
Company.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement, the
following are Events of Default under the Indenture with respect to Debt
Securities of any series: (a) failure to pay principal of or premium, if any, on
any Debt Security of that series when due; (b) failure to pay any interest on
any Debt Security of that series when due, continued for 30 days; (c) failure to
make any sinking fund payment, when due, in respect of any Debt Security of that
series; (d) failure to perform any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture solely for the
benefit of a series of Debt Securities other than that series), continued for 60
days after written notice by the Trustee or Holders of at least 25% in principal
amount of the Outstanding Debt Securities of that series as provided in the
Indenture; (e) a default under any evidence of indebtedness for money borrowed
by the Company (including a default with respect to Debt Securities of any other
series) in an individual principal amount outstanding of at least $15,000,000 or
under any instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company
(including the Indenture) in an individual principal amount outstanding of at
least $15,000,000, whether such indebtedness exists as of the date of the
Indenture or is thereafter created, which default shall constitute a failure to
pay any portion of the principal of such indebtedness when due and payable after
the expiration of any applicable grace period with respect thereto or which
default results in the acceleration of such indebtedness without such
indebtedness having been discharged, or such acceleration having been rescinded
or annulled, within 10 Business Days after written notice to the Company by the
Trustee or by the Holders of at least 25% in principal amount of the Outstanding
Debt Securities of such series as provided in the Indenture; (f) certain events
of bankruptcy, insolvency or reorganization of the Company; and (g) any other
Event of Default provided with respect to Debt Securities of that series. If an
Event of Default with respect to Outstanding Debt Securities of any series shall
occur and be continuing, either the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series by notice as
provided in the Indenture may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
Debt Securities of that series to be due and payable immediately. However, at
any time after a declaration of acceleration with respect to Debt Securities of
any series has been made, but before a judgment or decree based on such
acceleration has been obtained, the Holders of a majority in principal amount of
the Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration. For information as to waiver of defaults,
see "Modification and Waiver" below.
The Indenture provides that, subject to the duty of the Trustee during an
Event of Default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under
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the Indenture at the request or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable security or indemnity.
Subject to certain provisions, including those requiring security or
indemnification of the Trustee, the Holders of a majority in principal amount of
the Outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series.
The Company will be required to furnish to the Trustee under the Indenture
annually a statement as to the performance by the Company of its obligations
under the Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such modification or amendment (all such series considered as one class);
provided, however, that no such modification or amendment may, without the
consent of the Holder of each Outstanding Debt Security affected thereby; (a)
change the Stated Maturity of the principal of, or any installment of principal
of, or interest on, any Debt Security; (b) reduce the principal amount of, the
rate of interest on, or the premium, if any, payable upon the redemption of, any
Debt Security; (c) reduce the amount of principal of an Original Issue Discount
Security payable upon acceleration of the Maturity thereof; (d) change the
currency of payment of principal of, or premium, if any, or interest on any Debt
Security; (e) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security on or after the Stated Maturity
or Redemption Date thereof; (f) reduce the percentage in principal amount of
Outstanding Debt Securities of any series, the consent of the Holders of which
is required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults; or (g) amend certain other provisions of the Indenture relating to
amendments and defaults.
The Holders of at least a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all Debt
Securities of that series waive, insofar as that series is concerned, compliance
by the Company with certain covenants of the Indenture. The applicable
Prospectus Supplement will describe the terms of any such covenants. The Holders
of not less than a majority in principal amount of the Outstanding Debt
Securities of any series may, on behalf of the Holders of all Debt Securities of
that series, waive any past default under the Indenture with respect to that
series, except a default in the payment of the principal of, or premium, if any,
or interest on, any Debt Security of that series or in respect of a provision
which under the Indenture cannot be modified or amended without the consent of
the Holder of each Outstanding Debt Security of that series affected.
DEFEASANCE
Unless otherwise specified in the applicable Prospectus Supplement with
respect to the Debt Securities of a series, the Company, at its option, (i) will
be discharged from any and all obligations in respect of the Debt Securities of
such series (except for certain obligations to register the transfer or exchange
of Debt Securities of such series, to replace destroyed, stolen, lost or
mutilated Debt Securities of such series, and to maintain Paying Agents and hold
moneys for payment in trust) or (ii) need not comply with certain covenants
specified in the applicable Prospectus Supplement with respect to the Debt
Securities of that series, and the occurrence of an event described in clause
(d) under "Events of Default" above with respect to any defeased covenant and
clauses (e) and (g) of the "Events of Default" above shall no longer be an Event
of Default if, in either case, the Company deposits with the Trustee, in trust,
money or U.S. Government Obligations that through the payment of interest
thereon and principal thereof in accordance with their terms will provide money
in an amount sufficient to pay all the principal of (and premium, if any) and
any interest on the Debt Securities of such series on the dates such payments
are due (which may include one or more redemption dates designated by the
Company) in accordance with the terms of such Debt Securities. Such a trust may
only be established if, among other things, (a) no Event of Default or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under the Indenture shall have occurred and be continuing on the
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date of such deposit, (b) no Event of Default described under clause (f) under
"Events of Default" above or event which with the giving of notice or lapse of
time, or both, would become an Event of Default described under such clause (f)
shall have occurred and be continuing at any time during the period ending on
the 91st day following such date of deposit, and (c) the Company shall have
delivered an Opinion of Counsel to the effect that the Holders of the Debt
Securities will not recognize gain or loss for Federal income tax purposes as a
result of such deposit or defeasance and will be subject to Federal income tax
in the same manner as if such defeasance had not occurred; provided, however,
with respect to a legal defeasance such Opinion of Counsel will be based on a
change in the applicable federal income tax law. In the event the Company omits
to comply with its remaining obligations under the Indenture after a defeasance
of the Indenture with respect to the Debt Securities of any series as described
under clause (ii) above and the Debt Securities of such series are declared due
and payable because of the occurrence of any undefeased Event of Default, the
amount of money and U.S. Government Obligations on deposit with the Trustee may
be insufficient to pay amounts due on the Debt Securities of such series at the
time of the acceleration resulting from such Event of Default. However, the
Company will remain liable in respect of such payments.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. The Trustee will be
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest and there is a default under the Debt Securities, it must
eliminate such conflict or resign.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Company's Restated Articles of Incorporation (the "Articles of Incorporation"),
and the certificate of determination (a "Certificate of Determination") relating
to each series of the Preferred Stock which will be filed with the Commission
and incorporated by reference as an exhibit to the Registration Statement of
which this Prospectus is a part at or prior to the time of the issuance of such
series of the Preferred Stock.
AUTHORIZED CAPITAL STOCK
The authorized capital stock of the Company consists of 45,000,000 shares
of Common Stock, $1 par value, 5,000,000 shares of preferred stock, without par
value ("preferred stock of the Company," which term, as used herein, includes
the Preferred Stock offered hereby), and 2,000,000 shares of preference stock,
$20 par value (the "Preference Stock"). As of June 30, 1996, there were
outstanding 26,403,084 shares of Common Stock. No shares of preferred stock of
the Company or Preference Stock of the Company were outstanding on this date.
All of the Preference Stock of the Company is reserved for issuance under
the terms of the Company's Shareholder Rights Plan. (See "Description of Common
Stock -- Shareholder Rights Plan").
ISSUANCE OF PREFERRED STOCK
Except as otherwise provided by law, shares of preferred stock of the
Company, in preference to the holders of Preference Stock and the Common Stock
(the Preference Stock and Common Stock being referred to herein as the "Junior
Stock"), may be issued from time to time, in one or more series, and the Board
of
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Directors of the Company is authorized to fix or alter the rights, preferences,
privileges and restrictions granted to or imposed upon any such series.
As described below under "Description of Depositary Shares," the Company
may, at its option, elect to offer Depositary Shares evidenced by Depositary
Receipts, each representing a fraction (to be specified in the Prospectus
Supplement relating to the particular series of the Preferred Stock) of a share
of the particular series of the Preferred Stock issued and deposited with a
depositary, in lieu of offering full shares of such series of the Preferred
Stock.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (a) the
designation of such Preferred Stock and the number of shares offered; (b) the
amount of liquidation preference per share; (c) the initial public offering
price at which such Preferred Stock will be issued; (d) the dividend rate (or
method of calculation), the dates on which dividends shall be payable and the
dates from which dividends shall commence to cumulate, if any; (e) any
redemption or sinking fund provisions; (f) any conversion rights; (g) whether
the Company has elected to offer Depositary Shares as described below under
"Description of Depositary Shares;" and (h) any additional voting, dividend,
liquidation, redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. The rights of the holders of each series of the
Preferred Stock to receive dividends and distributions of assets will be
subordinate to those of the Company's general creditors, but superior to the
rights of holders of Junior Stock. See "Description of Common Stock" for a
description of certain provisions of State and federal law and the Articles of
Incorporation and Bylaws of the Company which may affect holders of Preferred
Stock.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
of the Company legally available therefor, cash dividends on such dates and at
such rates as are set forth in, or as are determined by the method described in,
the Prospectus Supplement relating to such series of the Preferred Stock. Such
rate may be fixed or variable or both. Each such dividend will be payable to the
holders of record as they appear on the stock books of the Company (or, if
applicable, the records of the Depositary (as hereinafter defined) referred to
under "Description of Depositary Shares") on such record dates, fixed by the
Board of Directors of the Company, as specified in the Prospectus Supplement
relating to such series of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and the Company will
have no obligation to pay the dividend accrued for such period, whether or not
dividends on such series are declared payable on any future dividend payment
dates. Dividends on the shares of each series of Preferred Stock for which
dividends are cumulative will accrue from the date on which the Company
initially issues shares of such series.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as the shares of any series of the Preferred Stock are outstanding, unless (a)
full dividends (including if such Preferred Stock is cumulative, dividends for
prior dividend periods) have been paid or declared and set apart for payment on
all outstanding shares of the Preferred Stock of such series and all other
classes and series of preferred stock of the Company (other than Junior Stock)
and (b) the Company is not in default or in arrears with respect to the
mandatory or optional redemption or mandatory repurchase or other mandatory
retirement of, or with respect to any sinking or other analogous fund for, any
shares of Preferred Stock of such series or any shares of any other preferred
stock of the Company of any class or series (other than Junior Stock), the
Company may
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not declare any dividends on any shares of Common Stock of the Company or any
other stock of the Company ranking as to dividends or distributions of assets
junior to such series of Preferred Stock, or make any payment on account of, or
set apart money for, the purchase, redemption or other retirement of, or for a
sinking or other analogous fund for, any shares of Junior Stock or make any
distribution in respect thereof, whether in cash or property or in obligations
or stock of the Company, other than Junior Stock which is neither convertible
into, nor exchangeable or exercisable for, any securities of the Company other
than Junior Stock.
LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus Supplement, in the
event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, the holders of each series of the Preferred Stock will
be entitled to receive out of the assets of the Company available for
distribution to shareholders, before any distribution of assets is made to the
holders of Junior Stock, the amount set forth in the Prospectus Supplement
relating to such series of the Preferred Stock. If, upon any voluntary or
involuntary liquidation, dissolution or winding up of the Company, the amounts
payable with respect to the Preferred Stock of any series and any other shares
of preferred stock of the Company (including any other series of the Preferred
Stock) ranking as to any such distribution on a parity with such series of the
Preferred Stock are not paid in full, the holders of the Preferred Stock of such
series and of such other shares of preferred stock of the Company will share
ratably in any such distribution of assets of the Company in proportion to the
full respective preferential amounts to which they are entitled. After payment
to the holders of the Preferred Stock of each series of the full preferential
amounts of the liquidating distribution to which they are entitled, the holders
of each such series of the Preferred Stock will be entitled to no further
participation in any distribution of assets by the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from time to
time in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund or otherwise, in each case upon terms, at
the times and at the redemption prices set forth in the Prospectus Supplement
relating to such series. Unless otherwise provided in the applicable Prospectus
Supplement, shares of the Preferred Stock redeemed by the Company will be
restored to the status of authorized but unissued shares of preferred stock of
the Company.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or pro
rata (subject to rounding to avoid fractional shares) as may be determined by
the Company or by any other method as may be determined by the Company in its
sole discretion to be equitable. From and after the redemption date (unless
default is made by the Company in providing for the payment of the redemption
price plus accumulated and unpaid dividends, if any) dividends will cease to
accumulate on the shares of the Preferred Stock called for redemption and all
rights of the holders thereof (except the right to receive the redemption price
plus accumulated and unpaid dividends, if any) will cease.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any dividends on shares of any series of the Preferred Stock or any other
series of preferred stock of the Company ranking on a parity as to dividends and
distribution of assets with such series of the Preferred Stock are in arrears,
no shares of any such series of the Preferred Stock or such other series of
preferred stock of the Company will be redeemed (whether by mandatory or
optional redemption) unless all such shares are simultaneously redeemed, and the
Company will not purchase or otherwise acquire any such shares; provided,
however, that the foregoing will not prevent the purchase or acquisition of such
shares pursuant to a purchase or exchange offer made on the same terms to
holders of all such shares outstanding.
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CONVERSION RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock or another series of Preferred Stock will be set forth in the Prospectus
Supplement relating thereto. See "Description of Common Stock."
VOTING RIGHTS
Except as indicated below or in a Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as required by applicable
law, the holders of the Preferred Stock will not be entitled to vote for any
purpose.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any shares of the Preferred Stock of a series remain outstanding, the consent
or the affirmative vote of the holders of at least a majority of the votes
entitled to be cast with respect to the then outstanding shares of such series
of the Preferred Stock together with any Other Preferred Stock (as defined
below), voting as one class, either expressed in writing or at a meeting called
for that purpose, will be necessary (a) to permit, effect or validate the
authorization, or any increase in the authorized amount, of any class or series
of shares of the Company ranking prior to the Preferred Stock of such series as
to dividends, voting or upon distribution of assets and (b) to repeal, amend or
otherwise change any of the provisions applicable to the Preferred Stock of such
series in any manner which adversely affects the powers, preferences, voting
power or other rights or privileges of such series of the Preferred Stock. In
case any series of the Preferred Stock would be so affected by any such action
referred to in clause (b) above in a different manner than one or more series of
the Other Preferred Stock then outstanding, the holders of shares of the
Preferred Stock of such series, together with any series of the Other Preferred
Stock which will be similarly affected, will be entitled to vote as a class, and
the Company will not take such action without the consent or affirmative vote,
as above provided, of at least a majority of the total number of votes entitled
to be cast with respect to each such series of the Preferred Stock and the Other
Preferred Stock, then outstanding, in lieu of the consent or affirmative vote
hereinabove otherwise required.
Unless otherwise specified in the applicable Prospectus Supplement, with
respect to any matter as to which the Preferred Stock of any series is entitled
to vote, holders of the Preferred Stock of such series and any other series of
preferred stock of the Company ranking on a parity with such series of the
Preferred Stock as to dividends and distributions of assets and which by its
terms provides for similar voting rights (the "Other Preferred Stock") will be
entitled to cast the number of votes set forth in the Prospectus Supplement with
respect to that series of Preferred Stock. As a result of the provisions
described in the preceding paragraph requiring the holders of shares of a series
of the Preferred Stock to vote together as a class with the holders of shares of
one or more series of Other Preferred Stock, it is possible that the holders of
such shares of Other Preferred Stock could approve action that would adversely
affect such series of Preferred Stock, including the creation of a class of
capital stock ranking prior to such series of Preferred Stock as to dividends,
voting or distributions of assets.
As more fully described below under "Description of Depositary Shares," if
the Company elects to issue Depositary Shares, each representing a fraction of a
share of a series of the Preferred Stock, each such Depositary Share will, in
effect, be entitled to such fraction of a vote per Depositary Share.
TRANSFER AGENT AND REGISTRAR
Unless otherwise indicated in a Prospectus Supplement relating thereto, the
Company will be the transfer agent, dividend and redemption price disbursement
agent and registrar for shares of each series of the Preferred Stock.
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DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts does not purport to be complete and is subject to
and qualified in its entirety by reference to the Deposit Agreement and
Depositary Receipts relating to each series of the Preferred Stock which will be
filed with the Commission and incorporated by reference as an exhibit to the
Registration Statement of which this Prospectus is a part at or prior to the
time of the issuance of such series of the Preferred Stock. The forms of Deposit
Agreement and Depositary Receipt are filed as exhibits to, or incorporated by
reference in, the Registration Statement of which this Prospectus is a part.
GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock rather than full shares of Preferred Stock. In the event such
option is exercised, the Company will issue to the public receipts for
Depositary Shares, each of which will represent a fraction (to be set forth in
the Prospectus Supplement relating to a particular series of the Preferred
Stock) of a share of a particular series of the Preferred Stock as described
below.
The shares of any series of the Preferred Stock represented by Depositary
Shares will be deposited under a separate deposit agreement (the "Deposit
Agreement") among the Company, a bank or trust company selected by the Company
(the "Depositary") and the holders from time to time of the Depositary Receipts.
Subject to the terms of the Deposit Agreement, each owner of a Depositary Share
will in general be entitled, in proportion to the applicable fraction of a share
of Preferred Stock represented by such Depositary Share, to all the rights and
preferences of the Preferred Stock represented thereby (including dividend,
voting, redemption and liquidation rights).
The Depositary Shares relating to any series of the Preferred Stock will be
evidenced by Depositary Receipts issued pursuant to the related Deposit
Agreement. Depositary Receipts will be distributed to those persons purchasing
such Depositary Shares in accordance with the terms of the offering made by the
related Prospectus Supplement.
Upon surrender of Depositary Receipts at the office of the Depositary and
upon payment of the charges provided in the Deposit Agreement and subject to the
terms thereof, a holder of Depositary Receipts is entitled to have the
Depositary deliver to such holder the whole shares of Preferred Stock underlying
the Depositary Shares evidenced by the surrendered Depositary Receipts. However,
there may be no market for the underlying Preferred Stock and once the
underlying Preferred Stock is withdrawn from the Depositary, it may not be
redeposited.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Receipts relating to such Preferred Stock in proportion, insofar
as practicable, to the respective numbers of Depositary Shares evidenced by such
Depositary Receipts held by such holders on the relevant record date. The
Depositary will distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Receipts a fraction of one cent,
and any balance not so distributed will be added to and treated as part of the
next sum received by the Depositary for distribution to record holders of
Depositary Receipts then outstanding.
In the event of a distribution other than in cash, the Depositary will
distribute such amounts of the securities or property received by it as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Depositary Receipts held by such holders on the relevant
record date, unless the Depositary determines that it is not feasible to make
such distribution, in which case the Depositary may, with the approval of the
Company, adopt such method as it deems equitable and practicable for the purpose
of effecting such distribution, including the sale of such securities or
property.
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The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by the Company to holders of
the Preferred Stock will be made available to holders of Depositary Receipts.
The amount distributed in all of the foregoing cases will be reduced by any
amounts required to be withheld by the Company or the Depositary on account of
taxes and governmental charges.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
will mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary
Receipts evidencing the Depositary Shares to be so redeemed at their respective
addresses appearing in the Depositary's books. The redemption price per
Depositary Share will be equal to the applicable fraction of the redemption
price per share payable with respect to such series of the Preferred Stock plus
all money and other property, if any, payable with respect to such Depositary
Share, including all amounts payable by the Company in respect of any
accumulated but unpaid dividends. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same redemption date the number of Depositary Shares representing shares of
Preferred Stock so redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata (subject to rounding to avoid fractions of Depositary Shares) as may be
determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of Depositary Receipts evidencing such Depositary Shares will cease,
except the right to receive the moneys payable upon such redemption and any
moneys or other property to which such holders were entitled upon such
redemption upon surrender to the Depositary of the Depositary Receipts
evidencing such Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting or action to be taken by written
consent at or as to which the holders of the Preferred Stock are entitled to
vote or consent, the Depositary will mail the information contained in such
notice of meeting or action to the record holders of the Depositary Receipts
evidencing the Depositary Shares relating to such Preferred Stock. Each record
holder of such Depositary Receipts on the record date (which will be the same
date as the record date for the Preferred Stock) will be entitled to instruct
the Depositary as to the exercise of the voting rights or the giving or refusal
of consent, as the case may be, pertaining to the number of shares of the
Preferred Stock represented by the Depositary Shares evidenced by such holder's
Depositary Receipts. The Depositary will endeavor, insofar as practicable, to
vote, or give or withhold consent with respect to, the maximum number of whole
shares of the Preferred Stock represented by all Depositary Shares as to which
any particular voting or consent instructions are received, and the Company will
agree to take all action which may be deemed necessary by the Depositary in
order to enable the Depositary to do so. The Depositary will abstain from
voting, or giving consents with respect to, shares of the Preferred Stock to the
extent it does not receive specific instructions from the holders of Depositary
Receipts evidencing Depositary Shares representing such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares relating to
any series of Preferred Stock and any provision of the related Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable. However, any amendment which imposes or increases any fees, taxes or
charges upon holders of Depositary Shares or Depositary Receipts relating to any
series of Preferred Stock or which materially and adversely alters the existing
rights of such holders will not be effective unless such amendment has been
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approved by the record holders of Depositary Receipts evidencing at least a
majority of such Depositary Shares then outstanding. Notwithstanding the
foregoing, no such amendment may impair the right of any holder of Depositary
Shares or Depositary Receipts to receive any moneys or other property to which
such holder may be entitled under the terms of such Depositary Receipts or the
Deposit Agreement at the times and in the manner and amount provided for
therein. A Deposit Agreement may be terminated by the Company or the Depositary
only after (a) all outstanding Depositary Shares relating thereto have been
redeemed and any accumulated and unpaid dividends on the Preferred Stock
represented by the Depositary Shares, together with all other moneys and
property, if any, to which holders of the related Depositary Receipts are
entitled under the terms of such Depositary Receipts or the related Deposit
Agreement, have been paid or distributed as provided in the Deposit Agreement or
provision therefor has been duly made, (b) there has been a final distribution
in respect of the Preferred Stock of the relevant series in connection with any
liquidation, dissolution or winding up of the Company and such distribution has
been distributed to the holders of the related Depositary Receipts, or (c) in
the event the Depositary Shares relate to a series of Preferred Stock which is
convertible into shares of Common Stock or another series of Preferred Stock,
all outstanding Depositary Shares have been converted into shares of Common
Stock or another series of Preferred Stock.
MISCELLANEOUS
The Depositary will forward to record holders of Depositary Receipts, at
their respective addresses appearing in the Depositary's books, all reports and
communications from the Company which are delivered to the Depositary and which
the Company is required to furnish to the holders of the Preferred Stock or
Depositary Receipts.
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of the
Preferred Stock and the initial issuance of the Depositary Receipts evidencing
the Depositary Shares, any redemption of the Preferred Stock and any withdrawals
of Preferred Stock by the holders of Depositary Shares. Holders of Depositary
Shares will pay other transfer and other taxes and governmental charges and such
other charges as are expressly provided in the Deposit Agreement to be for their
accounts.
The Deposit Agreement will contain provisions relating to adjustments in
the fraction of a share of Preferred Stock represented by a Depositary Share in
the event of a change in par value, split-up, combination or other
reclassification of the Preferred Stock or upon any recapitalization, merger or
sale of substantially all of the assets of the Company as an entirety.
Neither the Depositary nor any of its agents nor any registrar nor the
Company will be (a) liable if it is prevented or delayed by law or any
circumstance beyond its control in performing its obligations under the Deposit
Agreement, (b) subject to any liability under the Deposit Agreement to holders
of Depositary Receipts other than for the relevant party's gross negligence or
willful misconduct, or (c) obligated to prosecute or defend any legal proceeding
in respect of any Depositary Receipts, Depositary Shares or the Preferred Stock
unless satisfactory indemnity is furnished. They may rely upon written advice of
counsel or accountants, or information provided by holders of Depositary
Receipts or other persons in good faith believed to be competent and on
documents reasonably believed to be genuine.
RESIGNATION OR REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal.
15
<PAGE> 18
DESCRIPTION OF COMMON STOCK
GENERAL
The holders of the outstanding shares of Common Stock have full voting
rights, one vote for each share held of record. Shareholders have cumulative
voting rights with respect to the election of directors, if certain conditions
are met. Upon liquidation, dissolution, or winding up of the Company (but
subject to the rights of holders of preferred stock of the Company and
Preference Stock), the assets legally available for distribution to holders of
Common Stock will be distributed ratably among such holders. Holders of Common
Stock have no preemptive or other subscription or conversion rights, and no
liability for further calls upon shares. The Common Stock is not subject to
assessment.
Subject to the rights of holders of preferred stock of the Company and
Preference Stock, holders of Common Stock are entitled to receive such dividends
as may be declared by the Board of Directors of the Company out of funds legally
available therefor. Dividends on all series of Common Stock must have the same
record and payment dates. No series of Common Stock may have preference over any
other series as to the payment of dividends, but the amount of cash dividends
paid may vary among series.
The Company is the transfer agent and registrar for the Common Stock.
CERTAIN PROVISIONS OF THE ARTICLES OF INCORPORATION AND BYLAWS
The Articles of Incorporation contain provisions which require a
super-majority vote of the holders of Common Stock in order for certain types of
business combinations to be approved. These provisions are applicable to (a) any
merger or consolidation of the Company with or into a dominant stockholder (as
hereinafter defined) or any entity controlled by a dominant stockholder, (b) any
merger of a dominant stockholder with or into the Company or any corporation
controlled by or under common control with the Company, (c) any sale, lease,
exchange or transfer of all or substantially all of the property and assets of
the Company to a dominant stockholder or any entity controlled by or under
common control with a dominant stockholder, (d) any purchase, lease, exchange,
transfer or acquisition by the Company of all or substantially all of the
property and assets of a dominant stockholder or any entity controlled by or
under common control with a dominant stockholder, (e) any recapitalization of
the Company that would have the effect of increasing the voting power of a
dominant stockholder, and (f) any agreement, contract or other arrangement
providing for any of the foregoing. The term "dominant stockholder" is defined
as any person that, together with any affiliate or associate, beneficially owns
in the aggregate 10% or more of the outstanding Common Stock of the Company.
The affirmative vote of not fewer than 85% of the outstanding shares of
Common Stock must approve the above described business combinations, unless (a)
the Board of Directors of the Company has approved the business combination by
the affirmative vote of (i) not fewer than 65% of its members if the business
combination is approved in advance of the dominant stockholder becoming a
dominant stockholder or the acquisition of shares of Common Stock that caused
the dominant stockholder to become a dominant stockholder has been approved in
advance, or (ii) not fewer than 85% of its members in all other circumstances,
or (b) the Board of Directors of the Company by an affirmative vote of not fewer
than 85% has determined that the cash or fair value of the properties,
securities or other consideration to be received by the holders of Common Stock
in such business combination is not less than the highest per share price paid
by the dominant stockholder in acquiring any of its holdings of the Common
Stock. These provisions may only be amended by an affirmative vote of 65% of the
outstanding shares of the Company's Common Stock, unless there is a dominant
stockholder at the time of the vote, in which event a vote of 85% of the
outstanding shares of Common Stock is required.
California law permits corporations to limit or eliminate the personal
liability of their directors in any action, including actions brought by the
corporation or its shareholders for monetary damages for breach of a director's
fiduciary duty of care. The duty of care requires that, when acting on behalf of
the corporation, a director must act in good faith, in a manner such director
believes to be in the best interests of the corporation and its shareholders and
with such care, including reasonable inquiry, as an ordinarily prudent person in
a like position would use under similar circumstances. As a result, the
available relief to a corporation and its
16
<PAGE> 19
shareholders may be limited to equitable remedies such as injunction or
rescission if a company indemnifies its directors to the fullest extent
permitted by California law.
Article VIII of the Articles of Incorporation and Bylaws limit the
liability of directors of the Company to the Company or its shareholders (in
their capacity as directors, but not in their capacity as officers) to the
fullest extent permitted by California law. Specifically, directors of the
Company are not personally liable to the Company or its shareholders for
monetary damages for breach of a director's fiduciary duty as a director, except
(a) on account of profits made in connection with a purchase or sale of
securities in violation of Section 16(b) of the Exchange Act, (b) if a court of
competent jurisdiction determines that indemnification is unlawful, (c) for acts
or omissions involving intentional misconduct or knowing and culpable violations
of law, (d) for acts or omissions that the director believed to be contrary to
the best interests of the Company or its shareholders or that involve the
absence of good faith on the part of the director, (e) for any transaction for
which the director derived an improper benefit, (f) for acts or omissions that
show a reckless disregard for the director's duty to the Company or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing his or her duties, of a risk of
serious injury to the Company or its shareholders, (g) for acts or omissions
that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duties to the corporation or its shareholders, (h)
for liabilities arising out of transactions in which the director had a personal
interest, (i) for the approval of distributions to the Company's shareholders in
violation of California law, or (j) for the approval of the making by the
Company of any loan of money or property to a director or officer of the Company
or the guarantee of the obligations of any such director or officer in violation
of California law. The inclusion of these provisions in the Articles of
Incorporation and Bylaws may have the effect of reducing the likelihood of
litigation against directors of the Company, even though such an action, if
successful, might otherwise have benefited the Company or its shareholders.
SHAREHOLDER RIGHTS PLAN
On March 5, 1996, the Board of Directors of the Company adopted a
Shareholder Rights Plan (the "Rights Plan") pursuant to which the Company
distributed one right (the "Right") for each share of Common Stock issued
pursuant to the Plan as of the close of business on April 15, 1996 (the "Record
Date"). In addition, the Board of Directors of the Company authorized the
distribution of one Right for each share of Common Stock issued after the Record
Date, but prior to the date the Rights become exercisable, are redeemed or
expire.
Each full Right, if it becomes exercisable, initially entitles the holder
to purchase from the Company a unit of one one-hundredth of a share of
Preference Stock, at a purchase price of $54.00 per unit, subject to adjustment.
The Rights will expire at the close of business on April 15, 2006 unless
redeemed earlier. The Rights may not be exercised, and will not detach or trade
separately from the Common Stock except as described below.
The Rights will detach from the Common Stock and may be exercised only if a
person or group becomes the beneficial owner of 20% or more of the Common Stock
(a "Stock Acquisition"). If a Stock Acquisition occurs (except pursuant to an
offer for all outstanding shares of Common Stock which the Company's independent
directors determine is adequate and otherwise in the best interests of the
Company and its shareholders), then the Rights "flip-in" and, each Right not
owned by such person will entitle the holder to purchase, at the Rights'
then-current exercise price, the Common Stock or, if the number of shares of the
authorized Common Stock is insufficient to permit the full exercise of the
Rights, capital stock or other securities of the Company having an equivalent
value equal to twice the Right's exercise price. In addition, if at any time
following a Stock Acquisition, (i) the Company is acquired in a merger or other
business combination transaction in which the Company is not the surviving
corporation (other than a merger which follows an offer at the same price and
for the same consideration as the offer approved by the Board of Directors of
the Company as described in the immediately preceding sentence), or (ii) 50% or
more of the Company's assets or earnings power is sold or transferred, the
Rights "flip-over" and each unexercised Right will entitle its holder to
purchase, at the Right's then-current exercise price, common shares of the other
person having an equivalent value equal to twice the Right's exercise price. The
Rights may be redeemed by
17
<PAGE> 20
the Company at any time prior to ten business days following the date of a Stock
Acquisition (which period may be extended by the Company's Board of Directors at
any time while the Rights are still redeemable). Upon the occurrence of a
"flip-in" or "flip-over" event, if the Rights are not redeemed, the Rights would
result in substantial dilution to any person who has acquired 20% or more of the
outstanding Common Stock or who attempts to merge or consolidate with the
Company. As a result, the Rights may deter potential attempts to acquire control
of the Company without the approval of the Company's Board of Directors.
CERTAIN PROVISIONS OF STATE AND FEDERAL LAW
Arizona regulates certain business combinations by an "interested
shareholder" of a public corporation if the public corporation (a) has issued
securities under Section 12 of the Exchange Act, (b) has its principal place of
business in the State of Arizona, (c) owns or controls assets located within the
State of Arizona with a fair market value of at least one million dollars, and
(d) has more than 500 employees in the State of Arizona. The Company believes
that these provisions are currently applicable to the Company. A person becomes
an interested shareholder under the Arizona business combination statute upon
the acquisition of 10% or more of the outstanding voting shares of the public
corporation. The term "business combination" is broadly defined to include not
only acquisitions, but also restructuring transactions and transactions in which
the interested shareholder, or its associates or affiliates, receive financial
assistance or tax advantages from the public corporation. Business combinations
must be approved by a majority of the members of a committee of disinterested
directors in advance of the interested person becoming an interested person or
the consummation of the business combination must be delayed for three years and
the price to be paid must meet certain fair price criteria. The committee must
consider the long term interests of the public corporation in connection with
approving any such transaction. Additional restrictions are applicable to
acquisitions of control of 20% or more of a public corporation's voting stock.
Under California law, if a tender offer or a written proposal for approval
of a reorganization of a corporation or a sale of substantially all of its
assets is made by an "interested party", an affirmative opinion in writing as to
the fairness of the consideration to be received by the shareholders must be
delivered to each shareholder. The term "interested party" means a person who is
a party to the transaction and who (a) directly or indirectly controls the
corporation that is the subject of the tender offer or proposal, (b) is, or is
directly or indirectly controlled by, an officer or director of the corporation,
or (c) is an entity in which a material financial interest is held by any
director or executive officer.
No public utility or any of its affiliates may acquire any of the capital
stock of a public utility organized under California law, without CPUC approval,
if (a) the acquiror transacts business in California, or (b) the CPUC determines
that CPUC approval is otherwise required by the public interest. In addition, a
change in control application must be filed with the CPUC in connection with any
change in control of a public utility organized under California law. PSCN
approval is also required prior to any proposed transfer of 15% or more of the
common stock of a public utility doing business in Nevada.
No person may acquire 5% or more of the voting stock of a gas utility
(other than by merger), without Commission approval, if such person owns 5% or
more of the stock of another public utility or public utility holding company. A
registered public utility holding company may not acquire any security of
another gas utility without Commission approval, unless the transaction is
exempt under the Public Utility Holding Company Act of 1935, as amended (the
"PUHCA"), or the regulations promulgated thereunder. A person becomes a holding
company required to be registered under PUHCA upon acquisition of 10% or more of
the voting stock of a gas utility, unless the Commission determines that the
person does not control the gas utility. The Commission may condition any such
determination upon the applicant refraining from exercising voting rights,
controlling proxies or designating officers or directors. The Commission may not
approve the acquisition of securities of a gas utility unless it determines that
the acquisition would tend toward the economical and efficient development of an
integrated public utility system and would not be detrimental to investor
interests. The Commission may also condition its approval of the acquisition of
the securities of a gas utility upon a fair offer being made for the other
securities of the utility.
18
<PAGE> 21
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
Securities will be named in the applicable Prospectus Supplement. The Company
has reserved the right to sell Securities directly to investors on its own
behalf in those jurisdictions where and in such manner as it is authorized to do
so.
Underwriters may offer and sell Securities at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Company
also may, from time to time, authorize dealers, acting as the Company's agents,
to offer and sell Securities upon the terms and conditions as are set forth in
the applicable Prospectus Supplement. In connection with the sale of Securities,
underwriters may receive compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the Securities for whom they may act as agent. Underwriters may
sell Securities to or through dealers, and such dealers may receive compensation
in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set forth
in the applicable Prospectus Supplement. Dealers and agents participating in the
distribution of Securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them on resale of
the Securities may be deemed to be underwriting discounts and commissions.
Underwriters, dealers and agents may be entitled, under agreements entered into
with the Company, to indemnification against and contribution toward certain
civil liabilities.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, or otherwise, by one or
more firms ("remarketing firms"), acting as principals for their own accounts or
as agents for the Company. Any remarketing firm will be identified and the terms
of its agreement, if any, with the Company and its compensation will be
described in the applicable Prospectus Supplement. Remarketing firms may be
deemed to be underwriters in connection with the Securities remarketed thereby.
Remarketing firms may be entitled, under agreements which may be entered into
with the Company, to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act of 1933, and may be customers of,
engage in transactions with or perform services for the Company in the ordinary
course of business.
LEGAL MATTERS
The validity of the Securities will be passed upon for the Company by
O'Melveny & Myers LLP.
EXPERTS
The consolidated financial statements incorporated by reference in this
Prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report included in the Annual Report on Form
10-K for the year ended December 31, 1995, and are included herein in reliance
upon the authority of said firm as experts in accounting and auditing in giving
said report.
19
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
Registration fee................................................. $ 75,758
Rating agency fees............................................... 200,000
Printing and engraving expenses.................................. 225,000
Accounting fees and expenses..................................... 160,000
Legal fees and expenses.......................................... 280,000
Blue sky fees and expenses....................................... 10,000
Fees and expenses of Transfer Agent, Trustee and Depositary...... 20,000
Listing Fees..................................................... 80,000
Miscellaneous.................................................... 30,000
----------
Total..................................................... $1,080,758
==========
</TABLE>
- ---------------
* Expenses are estimated except for the registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the General Corporation Law of California provides that a
corporation has the power, and in some cases is required, to indemnify an agent,
including a director or officer, who was or is a party or is threatened to be
made a party to any proceeding, against certain expenses, judgments, fines,
settlements and other amounts under certain circumstances. Article VIII of the
Company's Bylaws provides for the indemnification of directors, officers and
agents as allowed by statute. In addition, the Company has purchased directors
and officers insurance policies which provide insurance against certain
liabilities for directors and officers of the Company.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
*1.01 Forms of Underwriting Agreement or Distribution Agreement.
3(i) Restated Articles of Incorporation of the Company.
4.01 Form of Deposit Agreement (included as an exhibit to the Registrant's
Registration Statement No. 33-55621 on Form S-3 and incorporated herein
by reference).
4.02 Form of Depositary Receipt (attached as Exhibit A to Deposit Agreement
included as Exhibit 4.01 hereto).
4.03 Indenture relating to the Debt Securities (included as an exhibit to the
Registrant's Form 8-K dated July 26, 1996 and incorporated herein by
reference).
*5.01 Opinion of O'Melveny & Myers as to the validity of Securities issued by
the Company.
12.01 Computation of Ratios of Earnings to Fixed Charges and Ratios of Earnings
to Combined Fixed Charges and Preferred Stock Dividends of the Company.
*23.01 Consent of Arthur Andersen LLP.
*23.02 Consent of O'Melveny & Myers (included in Exhibit 5.1).
24.01 Power of Attorney (included on page II-3).
25.01 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of Harris Trust and Savings Bank under the Indenture relating to the Debt
Securities (included as an exhibit to the Registrant's Form 8-K dated
July 26, 1996 and incorporated herein by reference).
</TABLE>
- ---------------
* To be filed by amendment or pursuant to a Form 8-K.
II-1
<PAGE> 23
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, unless the information required to be included
in such post-effective amendment is contained in a periodic report filed
by Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 and incorporated herein by reference;
(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, unless the information required to be
included in such post-effective amendment is contained in a period
report filed by each Registrant pursuant to Section 13 or Section 15(d)
of the Securities Act of 1934 and incorporated herein by reference.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of a Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-2
<PAGE> 24
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 Las Vegas, State of Nevada, on October 21, 1996.
SOUTHWEST GAS CORPORATION
By /s/ MICHAEL O. MAFFIE
--------------------------------
Michael O. Maffie
President and Chief Executive
Officer
Each person whose signature appears below authorizes Michael O. Maffie and
George C. Biehl, and each of them, as attorneys-in-fact, to sign any amendment,
including post-effective amendments, to this Registration Statement on his or
her behalf, individually and in each capacity stated below, and to file any such
amendment.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ MICHAEL O. MAFFIE Director, President and October 21, 1996
- --------------------------------------------- Chief Executive Officer
(Michael O. Maffie) (Principal Executive
Officer)
/s/ GEORGE C. BIEHL Senior Vice President and October 21, 1996
- --------------------------------------------- Chief Financial Officer
(George C. Biehl) (Principal Financial
Officer)
/s/ EDWARD A. JANOV Vice President, Controller October 21, 1996
- --------------------------------------------- and Chief Accounting
(Edward A. Janov) Officer
(Principal Accounting
Officer)
/s/ RALPH C. BATASTINI Director October 21, 1996
- ---------------------------------------------
(Ralph C. Batastini)
/s/ MANUEL J. CORTEZ Director October 21, 1996
- ---------------------------------------------
(Manuel J. Cortez)
/s/ LLOYD T. DYER Director October 21, 1996
- ---------------------------------------------
(Lloyd T. Dyer)
/s/ KENNY C. GUINN Chairman of the Board October 21, 1996
- --------------------------------------------- of Directors
(Kenny C. Guinn)
/s/ THOMAS Y. HARTLEY Director October 21, 1996
- ---------------------------------------------
(Thomas Y. Hartley)
/s/ MICHAEL B. JAGER Director October 21, 1996
- ---------------------------------------------
(Michael B. Jager)
</TABLE>
II-3
<PAGE> 25
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ LEONARD R. JUDD Director October 21, 1996
- ----------------------------------------------
(Leonard R. Judd)
/s/ JAMES R. LINCICOME Director October 21, 1996
- ----------------------------------------------
(James R. Lincicome)
/s/ CAROLYN M. SPARKS Director October 21, 1996
- ----------------------------------------------
(Carolyn M. Sparks)
/s/ ROBERT S. SUNDT Director October 21, 1996
- ----------------------------------------------
(Robert S. Sundt)
</TABLE>
II-4
<PAGE> 26
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
3(i) Restated Articles of Incorporation of the Company
12.01 Computation of Ratios of Earnings to Fixed Charges of the Company
</TABLE>
<PAGE> 1
EXHIBIT 3(i)
RESTATED ARTICLES OF INCORPORATION
OF
SOUTHWEST GAS CORPORATION
----------------------------------
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned have this day voluntarily associated ourselves
together for the purpose of forming a corporation under the general laws of the
State of California, and for such purpose,
WE HEREBY CERTIFY:
I.
The name of said corporation is and shall be
SOUTHWEST GAS CORPORATION
II.
The purposes for which it is formed are:
(a) Primarily to engage in, conduct and carry on the business of
manufacturing, generating, producing, buying, transmitting, distributing,
selling and otherwise disposing of gas and/or electricity to be used for light,
heat, refrigeration, power, and all other lawful purposes, and to supply
counties, cities, cities and counties, villages, towns, and other localities and
places in the State of California and the other states and territories of the
United States and in foreign countries, and the inhabitants thereof, with gas
and/or electricity, to be used for light, heat, refrigeration and power, and for
all other uses to which gas and/or electricity may be put;
(b) To construct, maintain and operate gas plants, with all buildings,
structures, pipes, mains, machinery, appliances and apparatus proper or
convenient for the manufacture, maintenance, operation, distribution and sale of
gas; to construct, maintain and operate electric plants, with all power houses,
generating stations, transmission lines, structures, machinery, apparatus,
appliances and materials proper or convenient for the generation, transmission,
distribution and sale of electricity;
(c) To acquire, own, lease, construct, occupy or use gas works and/or
electric works, and to maintain and operate the same;
(d) To acquire, hold, store, sell and distribute gas and/or electricity by
any other means and in addition to those herein provided;
<PAGE> 2
(e) To acquire by purchase, appropriation, lease, condemnation or
otherwise, to hold, enjoy, mortgage, pledge, assign and convey lands,
franchises, water rights, rights-of-way and other easements, patents and patent
rights, and all other real and personal property, which may at any time be
necessary or proper for the convenient and profitable transaction of the
business of said corporation, and for the exercise of its purpose, and of any
part hereof, and of its powers and franchises;
(f) To acquire by purchase, subscription or otherwise, to hold, sell,
assign, transfer, mortgage, pledge or otherwise dispose of, shares of the
capital stock of, and bonds, debentures or other evidences of indebtedness
created or issued by any corporation or corporations, and to exercise all rights
and powers of ownership concerning the same, including the right to vote
thereon;
(g) To borrow money, to execute bonds, promissory notes, bills of exchange,
debentures and other obligations and evidences of indebtedness of all kinds;
(h) To mortgage all or any part of the property, rights, interests and
franchises of the corporation, and to pledge all or any bonds, promissory notes,
bills of exchange, debentures and all securities and contracts of any kind at
any time owned by said corporation;
(i) To aid any other corporation by loan or gift, or by guaranty of any or
all of its obligations, or otherwise; to engage in, conduct and carry on any
business incidental, necessary, useful or auxiliary to the purpose, or any part
thereof, for which said corporation is formed;
(j) To exercise the right of eminent domain in any manner which may now or
hereafter be allowed or provided by law in the acquisition of any property or
rights required by the corporation for the purposes of its business;
(k) To act as principal, agent, joint venturer, partner or in any other
capacity which may be authorized or approved by the Board of Directors of this
corporation;
(l) In carrying on its business, or for the purpose of attaining or
furthering its purpose, or any part thereof as herein set forth and any other
purpose or object deemed incidental, necessary, useful or auxiliary to its
purpose, or any part thereof, to do any and all other acts or things and to
exercise any and all other powers which a natural person might do or exercise,
and which are now or may hereafter be authorized by law;
(m) The foregoing clauses shall be construed both as objects and powers,
and it is hereby expressly provided that the enumeration herein of specific
objects and powers shall not be held to limit or restrict in any way the general
powers of this corporation.
<PAGE> 3
III.
The County in this state where the principal office for the transaction of
the business of this corporation is to be located is the County of San
Bernardino.
IV.
This corporation is authorized to issue three classes of shares of stock,
to be designated respectively, as "Preferred Stock"; "Preference Stock"; and
"Common Stock." The total number of shares which this corporation shall have
authority to issue is 52,000,000 and the aggregate par value of all shares that
are to have a par value shall be $85,000,000. The number of shares of Preferred
Stock shall be 5,000,000 and without par value; the number of shares of
Preference Stock shall be 2,000,000 and shall have a par value of each share of
said class of $20; the number of shares of Common Stock shall be 45,000,000 and
shall have a par value of each share of said class of $1.
1. PREFERRED STOCK:
Except as otherwise provided by law, shares of Preferred Stock, in
preference to the holders of the Preference Stock and the Common Stock, may be
issued from time to time, in one or more series, and the Board of Directors of
the corporation is authorized to fix or alter the rights, preferences,
privileges and restrictions granted to or imposed upon any such series.
2. PREFERENCE STOCK:
Except as otherwise provided by law, shares of Preference Stock, in
preference to the holders of the Common Stock, may be issued from time to time,
in one or more series, and the Board of Directors of the corporation is
authorized to fix or alter the, dividend rights, dividend rates, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), the redemption price or prices, or the liquidation preferences of
any wholly unissued series, together with the designation of any such series and
the number of shares which shall constitute any such unissued series, and to
increase or decrease (but not below the number of shares of such series then
outstanding) the number of shares of any series subsequent to the issue of that
series.
3. COMMON STOCK:
Except as otherwise provided by law, shares of Common Stock may be issued
from time to time, in one or more series, and the Board of Directors of the
corporation is authorized to fix the initial dividend rate of any wholly
unissued series together with the designation of any such series and the number
of shares which shall constitute any unissued series, and to increase or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any such series subsequent to the issuance of that
series.
<PAGE> 4
Dividends on all series of Common Stock shall have the same record and
payment dates, and no dividends may be paid on any series unless dividends at
the rates required hereby are paid concurrently on all series. No series of
Common Stock shall have preference over any other series as to the payment of
dividends, but the amount of dividends paid may vary among the series
outstanding, as hereinafter set forth, in relationship to the initial dividend
rates established with respect to the several series.
All shares of Common Stock outstanding at the date hereof are hereby
designated as and shall hereafter continue to be Original Common Stock, and all
shares of Common Stock at any time authorized but unissued, until and unless
otherwise designated by the Board of Directors, shall be and continue to be
Original Common Stock, for a total of 45,000,000 shares of this series. Unless
otherwise designated by the Board of Directors, all shares of Common Stock
hereafter issued and all shares of Common Stock which the corporation may become
obligated to issue upon the conversion of any security convertible into Common
Stock and/or upon the exercise of options, warrants or rights to purchase Common
Stock shall be considered to be Original Common Stock.
Subject to the voting rights and other rights, preferences and privileges
above provided in this Article IV with respect to the Preferred Stock and the
Preference Stock, and except as otherwise provided by law, shares of all series
of Common Stock and/or the holders thereof shall have full voting rights and
powers for the election of directors and for all other purposes, voting together
as a single class irrespective of series, and, subject to the provisions
specified hereinabove, shall be entitled to receive dividends as and when they
are declared by the Board of Directors. Upon liquidation, distribution or
winding up of the corporation, the assets of the corporation available for
distribution to the holders of the Common Stock shall be distributed ratably
among the holders of all shares of the Common Stock at the time outstanding
irrespective of and without reference to series. The Common Stock shall have no
conversion, subscription or preemptive rights, nor shall it be subject to
redemption, call or assessment."
<PAGE> 5
IV-A
1. SUPERMAJORITY OF SHARES REQUIRED TO APPROVE CERTAIN TRANSACTIONS:
The affirmative vote of the holders of not fewer than 85 percent of the
outstanding shares of "Voting Stock" (as hereinafter defined) of this
corporation shall be required for the approval or authorization of any "Business
Combination" (as hereinafter defined) of this corporation with any "Dominant
Stockholder" (as hereinafter defined); provided, however, that the 85 percent
voting requirement shall not be applicable if any of the following shall occur:
(a) The Board of Directors of this corporation, by the affirmative vote of
not fewer than 65 percent of the members thereof, expressly approves in
advance the acquisition of the outstanding shares of Voting Stock that
caused such Dominant Stockholder to become a Dominant Stockholder; or
(b) The Board of Directors of this corporation, by the affirmative vote of
not fewer than 65 percent of the members thereof, expressly approves such
Business Combination in advance of such Dominant Stockholder becoming a
Dominant Stockholder; or
(c) The Board of Directors of this corporation, by the affirmative vote of
not fewer than 85 percent of the members thereof, approves such Business
Combination subsequent to such Dominant Stockholder becoming a Dominant
Stockholder; or
(d) The Board of Directors of this corporation, by the affirmative vote of
not fewer than 85 percent of the members thereof, shall determine that the
cash or fair market value of the property, securities or other
consideration to be received per share by holders of Voting Stock of this
corporation (which shall include, without limitation, all Voting Stock of
this corporation retained by them) in the Business Combination is not less
than the "Highest Per Share Price" or the "Highest Equivalent Per Share
Price" (as these terms are hereinafter defined) paid by the Dominant
Stockholder in acquiring any of its holdings of this corporation's Voting
Stock.
2. DEFINITIONS:
For the purposes of this Article IV-A;
(a) Business Combination. The term "Business Combination" shall include,
without limitation, (i) any merger or consolidation of this corporation
with or into any Dominant Stockholder or any entity controlled by or under
common control with a Dominant Stockholder, (ii) any merger or
consolidation of a Dominant Stockholder with or into this corporation or
any entity controlled by or under common control with this corporation,
(iii) any sale, lease, exchange, transfer or other disposition of all or
substantially all of the property and assets of this corporation to a
Dominant Stockholder, or any entity controlled by or under common control
with a Dominant Stockholder, (iv) any purchase,
<PAGE> 6
lease, exchange, transfer or other acquisition by this corporation of all
or substantially all of the property and assets of a Dominant Stockholder,
or any entity controlled by or under common control with a Dominant
Stockholder, (v) any recapitalization of this corporation that would have
the effect of increasing the voting power of a Dominant Stockholder, and
(vi) any agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business Combination.
(b) Dominant Stockholder. The term "Dominant Stockholder" shall mean and
include (i) any individual, corporation, partnership or other person or
entity which, together with its "Affiliates" and "Associates",
"Beneficially Owns" (as these terms are hereinafter defined) in the
aggregate 10 percent or more of the outstanding Voting Stock of this
corporation, and any Affiliate or Associate of any such individual,
corporation, partnership or other person or entity.
A Dominant Stockholder shall be deemed to have acquired a share of Voting
Stock of this corporation at the time when such Dominant Stockholder became
the Beneficial Owner thereof. Without limitation, any share of Voting Stock
of this corporation that any Dominant Stockholder has the right to acquire
at any time pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise, shall be deemed to be
Beneficially Owned by the Dominant Stockholder and to be outstanding for
purposes of this subparagraph (b).
(c) Affiliate. An "affiliate" of, or a person "affiliated" with, a
specified person such as a Dominant Stockholder, is a person that directly,
or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person specified.
(d) Associate. The term "associate", used to indicate a relationship with
any person such as a Dominant Stockholder, means (i) any corporation or
organization of which such person is an officer or partner or is, directly
or indirectly, the beneficial owner of 10 percent or more of any class of
equity securities, (ii) any trust or other estate in which such person has
a substantial beneficial interest or as to which such person serves as
trustee or in a similar fiduciary capacity, and (iii) any relative or
spouse of such person, or any relative of such spouse, who has the same
home as such person or who is a director or officer of such person or any
of its parents or subsidiaries.
(e) Beneficially Owns or Beneficial Owner. A "beneficial owner" of, or one
who "beneficially owns", a security includes any person who, directly or
indirectly, through any contract, arrangement, understanding, relationship
or otherwise, (i) has the right to acquire such security through the
exercise of any option, warrant or right or through the conversion of
another security into such security; or (ii) has or shares voting power
which includes the power to vote, or to direct the voting of, such
security; and/or (iii) has or shares investment power which includes the
power to dispose of, or to direct the disposition of, such security.
<PAGE> 7
(f) Voting Stock. The term "Voting Stock" shall mean all of the outstanding
shares of Common Stock (together, solely for the purpose of identifying a
Dominant Stockholder, with certain authorized but unissued shares that a
Dominant Stockholder is deemed to Beneficially Own), and each reference to
a proportion of shares of Voting Stock shall refer to such proportion of
the votes entitled to be cast by such shares.
(g) Highest Per Share Price and Highest Equivalent Per Share Price. The
terms "Highest Per Share Price" and "Highest Equivalent Per Share Price" as
used in this Article IV-A shall mean the following:
The Highest Per Share Price shall mean the highest price that can be
determined to have been paid at any time by the Dominant Stockholder for
any share of Voting Stock. If there are any securities of this corporation
outstanding ("related securities" herein) that entitle the holder thereof
to purchase, or that are convertible into, Voting Stock, the Highest
Equivalent Per Share Price shall mean, with respect to each type, class
and/or series of related securities, the amount in each case determined by
the affirmative vote of not fewer than 85 percent of the members of the
Board of Directors, on whatever basis they believe in good faith to be
appropriate, to be the highest per share price equivalent of the highest
price that can be determined to have been paid at any time by the Dominant
Stockholder for any such related securities. In determining the Highest Per
Share Price and Highest Equivalent Per Share Price, all purchases of Voting
Stock and related securities of this corporation by the Dominant
Stockholder shall be taken into account regardless of whether they occurred
before or after the Dominant Stockholder became a Dominant Stockholder.
With respect to shares of Voting Stock owned by Affiliates, Associates or
other persons whose ownership is attributed to a Dominant Stockholder, if
the price paid by such Dominant Stockholder for such shares is not
determined by the affirmative vote of not fewer than 85 percent of the
members of the Board of Directors, the price so paid shall be deemed to be
the higher of (i) the price paid upon the acquisition thereof by the
Affiliate, Associate or other person or (ii) the market price of the shares
in question at the time when the Dominant Stockholder became the Beneficial
Owner thereof. The Highest Per Share Price and the Highest Equivalent Per
Share Price shall include any brokerage commissions, transfer taxes and
soliciting dealers' fees or other value paid by the Dominant Stockholder
with respect to all Voting Stock and related securities acquired by the
Dominant Stockholder.
3. SUPERMAJORITY OF SHARES REQUIRED TO AMEND OR REPEAL THIS ARTICLE:
The provisions set forth in this Article IV-A may not be amended, altered,
changed or repealed in any respect unless approved by the affirmative vote of
the holders of not fewer than 65 percent of the outstanding shares of Voting
Stock (as defined in this Article IV-A) at a meeting of the shareholders duly
called and unless the consideration of any such amendment, alteration, change or
repeal shall have been included as an agenda item in the notice of such meeting;
provided, however, that if there is a Dominant Stockholder (as defined in this
Article IV-A) on the record date for determining the holders of Voting Stock
entitled to vote at such meeting, any
<PAGE> 8
such amendment, alteration, change or repeal must be approved by the affirmative
vote of the holders of not fewer than 85 percent of the outstanding shares of
Voting Stock of this corporation.
V.
The directors of this corporation need not be shareholders.
VI.
Attached hereto as Exhibit A, and by this reference incorporated herein, is
the Certificate of Determination of Junior Participating Preference Stock of
Southwest Gas Corporation.
VII.
1. The liability of directors of the corporation for monetary damages shall
be eliminated to the fullest extent permissible under California Law.
2. The corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to the applicable
limits set forth in Section 204 of the California Corporations Code with respect
to actions for breach of duty to the corporation and its shareholders.
3. The corporation is authorized to purchase and maintain insurance from
any insurance company, whether or not the shares of such insurance company are
wholly or partially owned by the corporation, on behalf of agents (as defined in
Section 317 of the California Corporations Code) against liability asserted
against or incurred by the agent in such capacity or arising out of the agent's
status, in excess of the indemnification otherwise permitted by Section 317 of
the California Corporations Code, subject only to the applicable limits set
forth in Section 204 of the California Corporations Code.
<PAGE> 9
EXHIBIT A
CERTIFICATE OF DETERMINATION
of
JUNIOR PARTICIPATING PREFERENCE STOCK
of
SOUTHWEST GAS CORPORATION
The undersigned officers of Southwest Gas Corporation, a California
corporation (the "Corporation"), hereby certify that the following resolution
has been duly adopted by the Board of Directors of the Corporation.
RESOLVED, that pursuant to the authority granted to the Board of
Directors of the Corporation by the Articles of Incorporation, a series of
shares of the Preference Stock of the Corporation is hereby established and the
number of shares constituting such series and the designation thereof, and the
rights, preferences, privileges and restrictions of the shares of such series,
are fixed and established as follows:
I. Designation and Amount
----------------------
The shares of such series shall be designated as "Junior
Participating Preference Stock" (the "Junior Preference Stock"), the number of
shares constituting the Junior Preference Stock shall be 2,000,000 and the par
value shall be $20 per share. Such number of shares may be decreased by
resolution of the Board of Directors; PROVIDED, that no decrease shall reduce
the number of shares of Junior Preference Stock to a number less than the number
of shares then outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon the conversion
of any outstanding securities issued by the Corporation convertible into Junior
Preference Stock.
II. Dividends and Distributions
---------------------------
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Junior
Preference Stock with respect to dividends, the holders of shares of Junior
Preference Stock, in preference to the holders of Common Stock of the
Corporation, shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Junior Preference Stock, in an
amount per share (rounded to the nearest cent) equal
<PAGE> 10
to the greater of (a) $1.00 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Junior Preference Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount to which
holders of shares of Junior Preference Stock were entitled immediately prior to
such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Junior
Preference Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); PROVIDED that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Junior
Preference Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares
of Junior Preference Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Junior Preference Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Junior Preference Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Junior Preference Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
<PAGE> 11
III. Voting Rights
-------------
The holders of shares of Junior Preference Stock shall have the
following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Junior Preference Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the shareholders of the Corporation.
(B) Except as otherwise provided herein, or in the Articles of
Incorporation or by law, the holders of shares of Junior Preference Stock and
the holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the number of votes to which holders of shares of Junior
Preference Stock were entitled immediately prior to such event under subsection
(A) of this section shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
IV. Certain Restrictions
--------------------
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Junior Preference Stock as provided in Section II are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Junior Preference Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Junior Preference Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Junior Preference Stock,
except dividends paid ratably on the Junior Preference Stock and all such
parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
<PAGE> 12
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preference Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Junior Preference Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Junior Preference Stock, or any shares of stock ranking on a
parity with the Junior Preference Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section
IV, purchase or otherwise acquire such shares at such time and in such manner.
V. Reacquired Shares
-----------------
Any shares of Junior Preference Stock purchased or otherwise acquired
by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preference Stock and may
be reissued as part of a new series of Preference Stock subject to the
conditions and restrictions on issuance set forth herein, in the Articles of
Incorporation or as otherwise required by law.
VI. Liquidation, Dissolution or Winding Up
--------------------------------------
Upon any liquidation, dissolution or winding up of the Corporation,
no distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Junior Preference Stock unless, prior thereto, the holders of shares of
Junior Preference Stock shall have received the greater of (a) $100 per share,
plus an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, or (b) 100 times the
aggregate amount to be distributed per share to holders of Common Stock, or (2)
to the holders of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Junior Preference Stock,
except distributions made ratably on the Junior Preference
<PAGE> 13
Stock and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the aggregate amount to which holders of shares of Junior
Preference Stock were entitled immediately prior to such event under clause (1)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
VII. Consolidation, Merger, etc.
---------------------------
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Junior Preference Stock shall at
the same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Junior
Preference Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
VIII. Redemption
----------
The shares of Junior Preference Stock shall not be redeemable.
<PAGE> 14
IX. Rank
----
The Junior Preference Stock shall rank, with respect to the payment
of dividends and the distribution of assets, junior to the Preferred Stock
class, the Cumulative Preferred Stock class, and any other series of the
Preference Stock class hereafter created and senior to the Second Preference
Stock and the Common Stock classes.
X. Amendment
---------
The Articles of Incorporation of the Corporation shall not be amended
in any manner which would alter or change the powers, preferences or special
rights of the Junior Preference Stock so as to affect them adversely without the
affirmative vote of the holders of at least a majority of the outstanding shares
of Junior Preference Stock, voting together as a single class.
The undersigned officers further certify that the number of shares of
Preference Stock the Corporation is authorized to issue is 2,000,000 shares, and
that the number of shares constituting the series designated Junior
Participating Preference Stock, none of which has been issued, is 2,000,000
shares.
Dated: March 14, 1996 /s/ Michael O. Maffie
---------------------------
Michael O. Maffie
President
/s/ Thomas J. Trimble
---------------------------
Thomas J. Trimble
Secretary
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing Certificate of Determination are true and correct.
Executed at Las Vegas, Nevada this 25th day of March, 1996.
/s/ Michael O. Maffie /s/ Thomas J. Trimble
- --------------------------- ---------------------------
Michael O. Maffie Thomas J. Trimble
<PAGE> 1
EXHIBIT 12.01
SOUTHWEST GAS CORPORATION
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(Thousands of dollars)
<TABLE>
<CAPTION>
For the Twelve Months Ended
------------------------------------------------------------------------------
June 30, December 31,
--------- ---------------------------------------------------------------
CONTINUING OPERATIONS 1996 1995 1994 1993 1992 1991
------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
1. Fixed charges:
A) Interest expense $52,716 $52,844 $48,688 $40,883 $35,533 $38,028
B) Amortization 1,617 1,569 1,426 1,330 1,183 1,089
C) Interest portion of rentals 4,883 4,435 4,743 4,556 4,468 4,525
D) Preferred securities distributions 3,651 913 -- -- -- --
------- ------- ------- ------- ------- -------
Total fixed charges $62,867 $59,761 $54,857 $46,769 $41,184 $43,642
======= ======= ======= ======= ======= =======
2. Earnings (as defined):
E) Pretax income from continuing
operations $ 310 $ 3,493 $38,119 $21,959 $49,752 $30,397
Fixed Charges (1. above) 62,867 59,761 54,857 46,769 41,184 43,642
------- ------- ------- ------- ------- -------
Total earnings as defined $63,177 $63,254 $92,976 $68,728 $90,936 $74,039
======= ======= ======= ======= ======= =======
3. Ratio of earnings to fixed charges 1.00 1.06 1.69 1.47 2.21 1.70
======= ======= ======= ======= ======= =======
</TABLE>
<TABLE>
<CAPTION>
For the Twelve Months Ended
---------------------------------------------------------------------------------
ADJUSTED FOR INTEREST ALLOCATED TO June 30, December 31,
DISCONTINUED OPERATIONS -------- -----------------------------------------------------------------
1996 1995 1994 1993 1992 1991
------- ------- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
1. Fixed charges
A) Interest expense $52,716 $52,844 $ 48,688 $40,883 $35,533 $38,028
B) Amortization 1,617 1,569 1,426 1,330 1,183 1,089
C) Interest portion of rentals 4,883 4,435 4,743 4,556 4,468 4,525
D) Preferred securities distributions 3,651 913 -- -- -- --
E) Allocated interest 4,818(1) 9,636 7,874 7,874 7,333 5,975
------- ------- -------- ------- ------- -------
Total fixed charges $67,685 $69,397 $ 62,731 $54,643 $48,517 $49,617
======= ======= ======== ======= ======= =======
2. Earnings (as defined):
F) Pretax income from continuing
operations $ 310 $ 3,493 $ 38,119 $21,959 $49,752 $30,397
Fixed Charges (1. above) 67,685 69,397 62,731 54,643 48,517 49,617
------- ------- -------- ------- ------- -------
Total earnings as defined $67,995 $72,890 $100,850 $76,602 $98,269 $80,014
======= ======= ======== ======= ======= =======
3. Ratio of earnings to fixed charges 1.00 1.05 1.61 1.40 2.03 1.61
======= ======= ======== ======= ======= =======
</TABLE>
(1) Represents allocated interest through the period ended December 31, 1995.
Carrying costs for the period subsequent to year end through the disposition of
the discontinued operations were accrued and recorded as disposal costs.
<PAGE> 2
SOUTHWEST GAS CORPORATION
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
(Thousands of dollars)
<TABLE>
<CAPTION>
For the Twelve Months Ended
------------------------------------------------------------------------
June 30, December 31,
-------- -----------------------------------------------------------
CONTINUING OPERATIONS 1996 1995 1994 1993 1992 1991
------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
1. Combined fixed charges:
A) Total fixed charges $62,867 $59,761 $54,857 $46,769 $41,184 $43,642
B) Preferred dividends(1) 34 404 826 1,183 1,623 2,202
------- ------- ------- ------- ------- -------
Total fixed charges and
preferred dividends $62,901 $60,165 $55,683 $47,952 $42,807 $45,844
======= ======= ======= ======= ======= =======
2. Earnings $63,177 $63,254 $92,976 $68,728 $90,936 $74,039
======= ======= ======= ======= ======= =======
3. Ratio of earnings to fixed charges
and preferred dividends 1.00 1.05 1.67 1.43 2.12 1.62
======= ======= ======= ======= ======= =======
</TABLE>
<TABLE>
<CAPTION>
For the Twelve Months Ended
-------------------------------------------------------------------------
ADJUSTED FOR INTEREST ALLOCATED TO June 30, December 31,
DISCONTINUED OPERATIONS -------- ------------------------------------------------------------
1996 1995 1994 1993 1992 1991
------- ------- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
1. Combined fixed charges
A) Total fixed charges $67,685 $69,397 $ 62,731 $54,643 $48,517 $49,617
B) Preferred dividends 34 404 826 1,183 1,623 2,202
------- ------- -------- ------- ------- -------
Total fixed charges and
preferred dividends $67,719 $69,801 $ 63,557 $55,826 $50,140 $51,819
======= ======= ======== ======= ======= =======
2. Earnings $67,995 $72,890 $100,850 $76,602 $98,269 $80,014
======= ======= ======== ======= ======= =======
3. Ratio of earnings to fixed charges
and preferred dividends 1.00 1.04 1.59 1.37 1.96 1.54
======= ======= ======== ======= ======= =======
</TABLE>
(1) Preferred and preference dividends have been adjusted to represent the
pretax earnings necessary to cover such dividend requirements.
