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As filed with the Securities and Exchange Commission on October 29, 1996December 5, 1997
Registration No. 333-333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C.WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Kaufman and Broad Home CorporationKAUFMAN AND BROAD HOME CORPORATION
(Exact name of registrant as specified in its charter)
DelawareDELAWARE 95-3666267
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Identification No.)
10990 Wilshire Boulevard
Los Angeles, CaliforniaWILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 231-4000
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
KimberlyKIMBERLY N. King, Esq.
Corporate Secretary and
Associate Counsel
Kaufman and Broad Home CorporationKING, ESQ.
CORPORATE SECRETARY AND ASSOCIATE COUNSEL
KAUFMAN AND BROAD HOME CORPORATION
10990 Wilshire Boulevard
Los Angeles,WILSHIRE BOULEVARD
LOS ANGELES, CA 90024
(310) 231-4000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Jeffrey Small, Esq.
Davis PolkR. GREGORY MORGAN, ESQ.
MUNGER, TOLLES & Wardwell
450 Lexington Avenue
New York, New York 10017OLSON LLP
355 SOUTH GRAND AVENUE
LOS ANGELES, CA 90071
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.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. [ ]
2
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: [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT PRICE (2)(3)(4) FEE
- -----------------------------------------------------------------------------------------------------------------
TITLE OF EACH AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF REGISTERED(1) OFFERING PRICE PER AGGREGATE REGISTRATION FEE
SECURITIES TO BE UNIT OFFERING
REGISTERED(1) PRICE(2)(3)(4)
Debt Securities(5) -- (6) -- --
- -----------------------------------------------------------------------------------------------------------------
Preferred Stock, ($1.00$1.00 par value(7) -- (6) -- --
par value)(7)- -----------------------------------------------------------------------------------------------------------------
Common Stock, ($1.00$1,00 par value, -- (6) -- --
par value)(8)including Preferred Stock Purchase
Rights(8)
- -----------------------------------------------------------------------------------------------------------------
Warrants -- (6) -- --
- -----------------------------------------------------------------------------------------------------------------
Total $200,000,000$500,000,000 (6) $200,000,000 $60,606.06(9)$500,000,000 $147,500.00(9)
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(1) Subject to Footnote (3), there are being registered hereunder (i) an
indeterminate amount of Debt Securities, Preferred Stock, Common Stock and
Warrants issuable in primary offerings, (ii) an indeterminate amount of
Common Stock issuable upon conversion of Debt Securities and Preferred Stock
registered hereunder, and (iii) an indeterminate amount of Debt Securities,
Preferred Stock and Common Stock issuable upon exercise of Warrants
registered hereunder.
(2) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or composite currencies. The proposed maximum offering price per unit will
be determined from time to time by the Registrant in connection with the
issuance of the securities registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee. In no
event will the aggregate maximum offering price of all securities issued
under this Registration Statement exceed $200,000,000$500,000,000 or the equivalent
thereof in one or more foreign currencies or composite currencies or, if any
Debt Securities are issued with original issue discount, such greater amount
as shall result in proceeds of $200,000,000$500,000,000 to the Registrant.
(4) With respect to Debt Securities, excluding accrued interest and accrued
amortization of discount, if any, to the date of delivery.
(5) Debt Securities may be issued in primary offerings and/or upon exercise of
Warrants registered hereby.
(6) Omitted pursuant to General Instruction II(D) of Form S-3 under the
Securities Act.
(7) Shares of Preferred Stock may be issued in primary offerings, upon
conversion of Debt Securities registered hereby, and/or upon exercise of
Warrants registered hereby.
(8) Shares of Common Stock may be issued in primary offering, upon conversion of
Debt Securities and/or Preferred Stock registered hereby, and/or upon
exercise of Warrants registered hereby. The aggregate amount of Common Stock
registered hereby is limited to that which is permissible under Rule
415(a)(4) under the Securities Act of 1933, as amended (the "Securities
Act"). The Preferred Stock Purchase Rights are not presently exercisable and
do not trade separately from the Common Stock.
(9) Determined pursuant to Rule 457(o) of the Securities Act.
An additional
filing fee of $31,250 was previously paid for $100,000,000 aggregate principal
amount of unsold securities registered under Registration Statement No.
33-50732.
Pursuant to Rule 429 under the Securities Act of------------------
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 the Prospectus included
herein contains a combined Prospectus that also relates to a total of
$100,000,000 of debt securities of the Registrant previously registered under
Registration StatementOR 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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[side legend on Form S-3 No. 33-50732 (which was declared effective
on August 20, 1992) and not issued. This Registration Statement constitutes
Post-Effective Amendment No. 1 to Registration Statement on Form S-3 No.
33-50732 pursuant to which the total amount of unsold debt securities
previously registered under Registration Statement on Form S-3 No. 33-50732
may be offered and sold as Debt Securities, Preferred Stock, Common Stock or
Warrants, without limitation as to class of securities, together with the
securities registered hereunder, through the use of the combined Prospectus
included herein relating to Debt Securities, Preferred Stock, Common Stock and
Warrants. In the event any of such previously registered Debt Securities are
offered and sold prior to the effective date of this Registration Statement,
the amount of such Debt Securities will not be included in any Prospectus
hereunder.
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The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
===========================================================================prospectus cover] 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 Kaufman and Broad Home Corporation
Debt Securities, Preferred Stock,
Common Stock,
and
Warrants to Purchase the Above SecuritiesSHALL 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 DECEMBER 5, 1997
PROSPECTUS
KAUFMAN AND BROAD HOME CORPORATION
DEBT SECURITIES, PREFERRED STOCK,
COMMON STOCK,
AND
WARRANTS
Kaufman and Broad Home Corporation, a Delaware corporation (the "Company"),
may offer and issue from time to time (i)(1) its debt securities ("Debt
Securities"), consisting of debentures, notes or other evidences of indebtedness
representing unsecured obligations of the Company, which may be either senior
Debt Securities, senior subordinated Debt Securities or subordinated Debt
Securities, (ii)(2) shares of its Preferred Stock, par value $1.00 per share
("Preferred Stock"), (iii)(3) shares of its Common Stock, par value $1.00 per share
("Common Stock"), or (iv)(4) warrants to purchase Debt Securities, Preferred Stock,
or Common Stock or other securities of the Company or another issuer ("Warrants").
The Debt Securities, Preferred Stock, Common Stock and Warrants are herein
collectively referred to as the "Securities". The Securities may be offered in
one or more separate classes or series, in amounts, at prices and on terms to be
determined by market conditions at the time of sale and to be set forth in a
supplement or supplements to this Prospectus (a "Prospectus Supplement"). Any
Securities may be offered with other Securities or separately. Debt Securities
or Preferred Stock may be convertible into shares of Common Stock. The aggregate
offering price of the Securities will not exceed $300,000,000.$500,000,000.
Certain terms of any Debt Securities in respect of which this Prospectus is
being delivered will be set forth in the accompanying Prospectus Supplement
including, without limitation, the specific designation (including whether such
Debt Securities are senior, senior subordinated or subordinated and whether such
Debt Securities are convertible)convertible or exchangeable for other securities of the
Company or another issuer), aggregate principal amount, purchase price,
currency, denomination, maturity, interest rate (which may be fixed or variable)
and time of payment of interest (if any), terms (if any) for the subordination,
redemption or conversion thereof, listing (if any) on a securities exchange and
any other specific terms of the Debt Securities. Certain terms of any Preferred
Stock in respect of which this Prospectus is being delivered will be set forth
in the accompanying Prospectus Supplement including, without limitation, the
designation, number of shares, liquidation
preference, purchase price, and provisions for dividends,
liquidation preference, voting, redemption and conversion provisionsor exchange (into
other securities of the Company or another issuer), and any listing on a
securities exchange. The purchase price of any Common Stock in respect of which
this Prospectus is being delivered will be set forth in the accompanying
Prospectus Supplement. Certain terms of any Warrants in respect of which this
Prospectus is being delivered will be set forth in the accompanying Prospectus
Supplement, including the specific designation, number, duration, purchase price
and terms thereof, any listing of the Warrants or the underlying securities on a
securities exchange and any other terms in connection with the offering, sale
and exercise of the Warrants, as well as the terms on which and the securities
for which such Warrants may be exercised. The Prospectus Supplement will also
contain information, where applicable, about certain United States federal
income tax considerations relating to the Securities covered by the Prospectus
Supplement.
The Company's Common Stock is listed on the New York Stock Exchange under
the symbol KBH.
See "Risk Factors" in the Prospectus Supplement for a description of
certain factors that should be considered by purchasers of the Securities
offered hereby."KBH."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED ON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The Securities may be sold on a negotiated or competitive bid basis to or
through underwriters or dealers designated from time to time or to other
purchasers directly or through agents designated from time to time. Certain
terms of the offering and sale of the Securities, including, where applicable,
the names of the underwriters, dealers or agents, if any, the principal amount
or number of shares or Warrants to be purchased, the purchase price of the
Securities and the proceeds to the Company from such sale, and any applicable
commissions, discounts and other items constituting compensation of such
underwriters, dealers or agents, will also be set forth in the accompanying
Prospectus Supplement.
The date of this Prospectus is October 29, 1996THE DATE OF THIS PROSPECTUS IS _____________, 1997
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CERTAIN PERSONS PARTICIPATING IN CONNECTION WITH AN OFFERING THE UNDERWRITERS FOR SUCH OFFERING MAY OVER-ALLOTENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAINOTHERWISE AFFECT THE MARKET PRICE OF THE SECURITIES, AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAILINCLUDING
OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH SECURITIES,
AND THE IMPOSITION OF A PENALTY BID, IN CONNECTION WITH THE OFFERING. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING" IN THE OPEN MARKET.PROSPECTUS SUPPLEMENT
FOR SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE, THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.OFFERING.
No dealer, salesmansalesperson or other person has been authorized to give any
information or to make any representation not contained or incorporated by
reference in this Prospectus or any Prospectus Supplement, and, if given or
made, such information or representation must not be relied upon as having been
authorized by the Company or by any underwriter, agent or dealer. This
Prospectus and any Prospectus Supplement shall not constitute an offer to sell
or a solicitation of an offer to buy any of the Securities offered hereby in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. Neither the delivery of this Prospectus and
any Prospectus Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that the information therein is correct as
of any time subsequent to the date thereof.
TABLE OF CONTENTS
Page
Available Information...............................
PAGE
Available Information .......................................... 3
Incorporation of Certain Information by Reference .............. 3
The Company .................................................... 4
Use of Proceeds ................................................ 4
Consolidated Ratios of Earnings to Fixed Charges
and of Earnings to Combined Fixed Charges and
Preferred Stock Dividends ...................................... 4
Description of the Debt Securities ............................. 5
Description of Capital Stock ................................... 13
Description of Warrants ........................................ 17
Plan of Distribution ........................................... 19
Experts ........................................................ 19
Legal Matters .................................................. 20
2
Incorporation of Certain Information by Reference... 3
The Company......................................... 4
Use of Proceeds..................................... 4
Consolidated Ratios of Earnings to Fixed Charges
and of Earnings to Combined Fixed Charges and
Preferred Stock Dividends........................... 4
Description of the Debt Securities.................. 5
Limitations on Issuance of Bearer Debt
Securities.......................................... 15
Description of Capital Stock........................ 16
Description of Warrants............................. 20
Plan of Distribution................................ 22
Experts............................................. 23
Legal Matters....................................... 23
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 or at its Regional Offices located at Suite
1400, Northwestern AtriumCiticorp Center, 500 West Madison Street, Chicago, Illinois 60661-2511 and
at Seven World Trade Center, 13th Floor, New York, New York 10048, and copies of
such material can be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
Such material may also be accessed electronically by means of the Commission's
home page on the Internet at http://www.sec.gov. The Company's Common Stock is
listed on the New York Stock Exchange, Inc. (the "New York Stock Exchange").Exchange. In addition, reports, proxy statements
and other information concerning the Company can be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus omits certain of the information
set forth in such Registration Statement in accordance with the rules and
regulations of the Commission. Reference is hereby made to such Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company and the Securities. Any statements contained herein
concerning the provisions of any document are not necessarily complete, and in
each instance reference is made to the copy of such document filed as an exhibit
to the Registration Statement or otherwise filed with the Commission for a more
complete description of the matter involved. Each such statement is qualified in
its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed with the Commission, are
hereby incorporated by reference:
1. Annual Report on Form 10-K of the Company for the year ended November
30, 1995;1996; and
2. Quarterly Reports on Form 10-Q of the Company for the quarters ended
February 29, 1996 and28, 1997, May 31, 1996, as amended,1997 and
Quarterly Report on Form 10-Q of the Company for the quarter ended August 31, 1996;1997; and
3. Current Reports on Form 8-K of the Company dated March 12, 1996
(filed MarchOctober 8, 1997
and October 14, 1996) and May 23, 1996 (filed May 23, 1996).1997.
All documents filed by the Company after the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the termination of the offering of the Securities offered hereby, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein (or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any statements so modified or superseded shall be
deemed to constitute a part of this Prospectus, except as so modified or
superseded.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the documents referred
to above which have been or may be incorporated by reference in this Prospectus
(other than certain exhibits to such documents). RequestsTelephone requests for such
documents may be made by dialing 1-888-KBH-NYSE (1-888-524-6973). Mail requests
for such documents should be directed to Kaufman and Broad Home Corporation,
10990 Wilshire Boulevard, Los Angeles, California 90024, Attention: Investor
Relations (telephone (310) 231-4010).Relations.
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THE COMPANY
The Company is a builder of single-family homes with domestic operations in
seven western states, and international operations in France and Mexico.
Domestically, the Company is the largest home builder west of the Mississippi
River, delivering more single-family homes than any other builder in the region.
Founded in 1957, the Company builds innovatively designed homes which cater
primarily to first-time home buyers, generally in medium-sized developments
close to major metropolitan areas. Internationally, the Company is among the
largest builders in greater metropolitantmetropolitan Paris, France, based on the number of
homes delivered. In France, the Company also builds commercial projects and
high-density residential properties, such as condominium and apartment
complexes. The Company provides mortgage banking services to domestic home
buyers through its wholly owned subsidiary, Kaufman and Broad Mortgage Company.
The Company is a Delaware corporation and maintains its principal executive
offices at 10990 Wilshire Boulevard, Los Angeles, California 90024. Its
telephone number is (310) 231-4000. As used herein, the term "Company" refers to
Kaufman and Broad Home Corporation and its subsidiaries, unless the context
indicates otherwise.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement,
proceeds from the sale of the Securities will be used by the Company for general
corporate purposes, which may include, among other things, the development of
new residential properties and commercial projects, the repayment of existing
indebtedness, as well as possible land and corporate acquisitions.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth the consolidated ratios of earnings to fixed
charges and earnings to combined fixed charges and preferred stock dividends of
the Company for each of the periods indicated.
NINE MONTHS
ENDED AUGUST 31, YEAR ENDED NOVEMBER 30,
----------------- ------------------------------------------
1997 1996 1996 1995 1994 1993 1992
----------------- ------------------------------------------
Nine Months
Ended August 31, Year Ended November 30,
1996 1995 1995 1994 1993 1992 1991
------- ------- ------- ----- ----- ----- -----
Ratio of Earnings to Fixed Charges (1)........................ (1.27)x(2)......1.96x --(2)(3) 1.03x--(2)(3) 1.35x 2.09x 2.07x 1.88x 1.51x
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends (1)................................. (1.12)x(2)Dividends(1) ...1.96x --(2)(3) .86x(3)--(2)(3) 1.12x 1.64x 1.80x 1.88x 1.51x
________________- ----------------
(1) For purposes of calculating the ratio of earnings to fixed charges and the
ratio of earnings to combined fixed charges and preferred stock dividends,
earnings are computed by adding fixed charges (except capitalized interest
and the effect of preferred stock dividends) and amortization of previously
capitalized interest to pretax earnings (excluding undistributed earnings
of unconsolidated joint ventures). Fixed charges consist of interest
expense plus capitalized interest and the portion of rental expense
considered to be interest and, for the ratio of earnings to combined fixed
charges and preferred stock dividends prior to April 1, 1996, include the
effect of preferred stock dividends on the Company's Series B Mandatory
Conversion Premium Dividend Preferred Stock. On April 1, 1996, all shares
of the Company's only outstanding series of preferred stock, the Series B
Mandatory Conversion Premium Dividend Preferred Stock, were mandatorily
converted to shares of Common Stock and no future preferred stock dividends
will be paid or are payable with respect to such preferred stock.
In computing the ratio of earnings to fixed charges and the ratio of
earnings to combined fixed charges and preferred stock dividends, interest
expense excludes interest incurred by the Company's wholly owned limited
purpose financing subsidiaries with respect to their outstanding
collateralized mortgage obligations. If interest on such collateralized
mortgage obligations were included, (i) earnings for the nine months ended
August 31, 1996 and the year ended November 30, 1996 would have been
inadequate to cover fixed charges by $132.8 million and $97.8 million,
respectively, while the ratio of earnings to fixed charges for the periods
presentednine
months ended August 31, 1997 and the years ended November 30, 1995, 1994,
1993 and 1992 would have been (1.05x), 1.03x,1.87x, 1.31x, 1.88x, 1.77x 1.55x and 1.31x,1.55x,
respectively, and (ii) earnings for the nine months ended August 31, 1996
and the year ended November 30, 1996 would have been inadequate to cover
combined fixed charges and preferred stock dividends by $140.5 million and
$105.5 million, respectively, while the ratio of earnings to combined fixed
charges and preferred stock dividends for the nine months ended August 31,
1997 and the years ended November 30, 1995, 1994, 1993 and 1992 would have
been (.94x), .87x,1.87x, 1.11x, 1.54x, 1.60x, and 1.54x, and 1.31x, respectively.
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(2) The amount of earnings used in the calculation of the ratio of earnings to
fixed charges and the ratio of earnings to combined fixed charges and
preferred stock dividends for the nine months ended August 31, 1996 and the
year ended November 30, 1996 includes the $170.8 million pretax non-cash
charge for impairment of long-lived assets recorded by the Company in the
second quarter of 1996. If the non-cash charge for impairment of long-lived
assets were excluded, the ratio of earnings to fixed charges and the ratio
of earnings to combined fixed charges and preferred stock dividends for the
nine months ended August 31, 1996 would have been 1.65x and 1.46x,
respectively, and for the year ended November 30, 1996 would have been
1.96x and 1.78x, respectively.
(3) Earnings for the nine months ended August 31, 1996 and the year ended
November 30, 1996 are inadequate to cover fixed charges by $132.8 million.million
and $97.8 million, respectively. Earnings for the nine months ended August
31, 1996 and 1995the year ended November 30, 1996 are inadequate to cover
combined fixed charges and preferred stock dividends by $140.5 million and
$9.8$105.5 million, respectively.
DESCRIPTION OF THE DEBT SECURITIES
The following sets forth certain general terms and provisions of the
indentures under which the Debt Securities are to be issued. If so issued, the
particular terms of the Debt Securities will be set forth in a Prospectus
Supplement relating to such Debt Securities which will accompany this
Prospectus.
The Debt Securities will constitute either senior, senior subordinated or
subordinated debt of the Company and will be issued, in the case of Debt
Securities that will be senior debt, under a Senior Indenture (the "Senior Debt
Indenture"), in the case of Debt Securities that will be senior subordinated
debt, under a Senior Subordinated Indenture (the "Senior Subordinated Debt
Indenture"), and, in the case of Debt Securities that will be subordinated debt,
under a Subordinated Indenture (the "Subordinated Debt Indenture"), each such
indenture to be executed by the Company and one or more trustees (each a
"Trustee"). The Senior Debt Indenture, the Senior Subordinated Debt Indenture
and the Subordinated Debt Indenture are sometimes hereinafter referred to
individually as an "Indenture" and collectively as the "Indentures." The
Indentures will be in the form that has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part, subject to such
amendments or supplements as are adopted from time to time. The following
summaries of certain provisions of the Indentures and the Debt Securities do not
purport to be complete and such summaries are subject to the detailed provisions
of the applicable Indenture to which reference is hereby made for a full
description of such provisions, including the definition of certain terms used
herein, and for other information regarding the Debt Securities. Numerical
references in parentheses below are to sections in the applicable Indenture.
Wherever particular sections or defined terms of the applicable Indenture are
referred to, such sections or defined terms are incorporated herein by reference
as part of the statement made, and the statement is qualified in its entirety by
such reference. The Indentures are substantially identical, except for the
provisions relating to subordination. See "Senior Subordinated Debt" and
"Subordinated Debt." The Debt Securities offered by this Prospectus and the
accompanying Prospectus Supplement are referred to herein as the "Offered Debt
Securities."
GeneralGENERAL
None of the Indentures limits the amounts of additional indebtedness the
Company or any of its subsidiaries may incur, except as may be provided in the
Prospectus Supplement. The Debt Securities will be unsecured senior, senior
subordinated or subordinated obligations of the Company. The Company is a
holding company, which currently conducts its operations through consolidated
and unconsolidated subsidiaries. All of the operating assets of the Company are
owned by its subsidiaries, effectively subordinating the Debt Securities to all
indebtedness (including trade payables) of the Company's subsidiaries.
Therefore, the Company's rights and the rights of its creditors, including
holders of Debt Securities, to participate in the assets of any subsidiary upon
the latter's liquidation or recapitalization will be subject to the prior claims
of the subsidiary's creditors, except to the extent that the Company may itself
be a creditor with recognized claims against the subsidiary, in which case the
claims of the Company would still be effectively subordinate to any third party
security interests in the assets of such subsidiary and would be subordinate to
any indebtedness of such subsidiary senior to that held by the Company. In
addition, dividends, loans and advances from certain subsidiaries to the Company
may be subject to certain contractual, statutory or regulatory restrictions, are
contingent upon the earnings of such subsidiaries and are subject to various
business considerations.
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The Indentures provide that Debt Securities may be issued from time to time
in one or more series and may be denominated and payable in U.S. dollars or
foreign currencies or units based on or relating to foreign currencies,
including European Currency Units ("ECUs"). Special United States federal income
tax considerations applicable to any Debt Securities so denominated arewill be
described in the relevant Prospectus Supplement.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Offered Debt Securities (to the extent such
terms are applicable to such Offered Debt Securities): (i) classification as
senior, senior subordinated or subordinated Debt Securities, the specific
designation, aggregate principal amount, purchase price and denomination; (ii)
currency or units based on or relating to currencies in which such Offered Debt
Securities are denominated and/or in which principal (and premium, if any)
and/or any interest will or may be payable; (iii) any date of maturity; (iv)
interest rate or rates (or the method by which such rate will be determined), if
any; (v) the date from which interest will accrue and dates on which any such
interest will be payable; (vi) the place or places where the principal of,
premium, if any, and interest, if any, on the Offered Debt Securities will be
payable; (vii) any redemption, repayment or sinking fund provisions; (viii) the
terms, if any, on which such Debt Securities may be converted into or exchanged
for stock or other securities of the Company or other entities, any specific
terms relating to the adjustment thereof and the period during which such Debt
Securities may be so converted or exchanged; (ix) whether the Offered Debt
Securities will be issuable in registered form or bearer form ("Bearer
Securities") or both, and if Bearer Securities are issuable, any restrictions
applicable to the exchange of one form for another and to the offer, sale and
delivery of Bearer Securities; (x) any applicable United States federal income
tax consequences, including whether and under what circumstances the Company
will pay additional amounts on Offered Debt Securities held by a person who is
not a U.S. person (as defined in the Prospectus Supplement) in respect of any
tax, assessment or governmental charge withheld or deducted and, if so, whether
the Company will have the option to redeem such Offered Debt Securities rather
than pay such additional amounts; and (xi) any other specific terms of the
Offered Debt Securities, including any additional events of default or covenants
provided for with respect to such Offered Debt Securities, and any terms that
may be required by or advisable under applicable laws or regulations.
Debt Securities may be presented for exchange and registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Indenture and the Prospectus
Supplement. Such services will be provided without charge, other than any tax or
other governmental charge payable in connection therewith, but subject to the
limitations provided in the applicable Indenture. Debt Securities in bearer form
and the coupons, if any, appertaining thereto will be transferable upon
delivery.
Debt Securities will bear interest at a fixed rate (a "Fixed Rate
Security") or a floating rate (a "Floating Rate Security"). Debt Securities
bearing no interest or interest at a rate that at the time of issuance is below
the prevailing market rate will be sold at a discount below their stated
principal amount. Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain Debt Securities
issued at par that are treated as having been issued at a discount for United
States federal income tax purposes arewill be described in the relevant Prospectus
Supplement.
Debt Securities may be issued, from time to time, with the principal amount
payable on any principal payment date, or the amount of interest payable on any
interest payment date, to be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors. Holders of
such Debt Securities may receive a principal amount on any principal payment
date, or a payment of interest on any interest payment date, that is greater
than or less than the amount of principal or interest otherwise payable on such
dates, depending upon the value on such dates of the applicable currency,
commodity, equity index or other factors. Information as to the methods for
determining the amount of principal or interest payable on any date, the
currencies, commodities, equity indices or other factors to which the amount
payable on such date is linked and certain additional tax considerations will be
set forth in the applicable Prospectus Supplement.
Global Securities6
9
GLOBAL SECURITIES
Registered Global Security. The registered Debt Securities of a series may
be issued in the form of one or more fully registered global securities (each, a
"Registered Global Security") that will be deposited with a depositary (a
"Depositary"), or with a nominee for a Depositary, identified in the Prospectus
Supplement relating to such series and registered in the name of the Depositary
or a nominee thereof. In such case, one or more Registered Global Securities
will be issued in a denomination or aggregate denominations equal to the portion
of the aggregate principal amount of outstanding registered Debt Securities of
the series to be represented by such Registered Global Security or Securities.
Unless and until it is exchanged in whole for Debt Securities in definitive
registered form, a Registered Global Security may not be transferred except as a
whole by the Depositary for such Registered Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such series.
The Company anticipates that the following provisions will apply to all
arrangements with a Depositary for the Registered Global Securities. The
information concerning such depositary arrangements has been obtained from
sources the Company believes to be reliable, but the Company takes no
responsibility for the accuracy thereof.
Beneficial ownership of interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the Depositary
for such Registered Global Security will credit, on its book-entry registration
and transfer system, the participants' accounts with the respective principal
amounts of the Debt Securities represented by such Registered Global Security
beneficially owned by such participants. The participants' accounts to be
credited shall be designated by any dealers, underwriters or agents
participating in the distribution of such Debt Securities. Ownership of
beneficial interests in such Registered Global Security will be shown on, and
the transfer of such ownership interests will be effected only through, records
maintained by the Depositary for such Registered Global Security (with respect
to interests of participants) and on the records of participants (with respect
to interests of persons holding through participants). The laws of some states
may require that certain purchasers of securities take physical delivery of such
securities in definitive form. These laws may impair the ability to own,
transfer or pledge beneficial interests in Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
nominee, as the case may be, will be considered the sole owner or holder of the
Debt Securities represented by such Registered Global Security for all purposes
under the applicable Indenture. Except as set forth below, owners of beneficial
interests in a Registered Global Security will not be entitled to have the Debt
Securities represented by such Registered Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners or holders
thereof under the applicable Indenture. Accordingly, each person owning a
beneficial interest in a Registered Global Security must rely on the procedures
of the Depositary for such Registered Global Security 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 applicable
Indenture. Under existing industry practices, if the Company requests any action
of beneficial owners or if an owner of a beneficial interest in a Registered
Global Security desires to give or take any action that a holder is entitled to
give or take under the applicable Indenture, the Depositary for such Registered
Global Security would authorize the participants holding the relevant beneficial
interests to give or take such action, and such participants would authorize
beneficial owners owning through such participants to give or take such action
or would otherwise act upon the instructions of beneficial owners holding
through them.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Registered Global Security registered in the name of a
Depositary or its nominee will be made to such Depositary or its nominee, as the
case may be, as the registered owner of such Registered Global Security. None of
the Company, the Trustee or any other agent of the Company or agent of the
Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial owners of interests
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in such Registered Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal premium or interest in respect of such Registered Global Security,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such Registered Global
Security as shown on the records of such Depositary. The Company also expects
that payments by participants to owners of beneficial interest in such
Registered Global Security held through such participants will be governed by
standing customer instructions and customary practices, as is now the case with
the securities held for the accounts of customers in bearer form or registered
in "street name," and will be the responsibility of such participants.
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary or
ceases to be a clearing agency registered under the Exchange Act, and a
successor Depositary registered as a clearing agency under the Exchange Act is
not appointed by the Company within 90 days, the Company will issue such Debt
Securities in definitive form in exchange for such Registered Global Security.
In addition, the Company may at any time and in its sole discretion determine
not to have any of the Debt Securities of a series represented by one or more
Registered Global Securities and, in such event, will issue Debt Securities of
such series in definitive form in exchange for all of the Registered Global
Security or Securities representing such Debt Securities. Any Debt Securities
issued in definitive form in exchange for a Registered Global Security will be
registered in such name or names as the Depositary shall instruct the relevant
Trustee. It is expected that such instructions will be based upon directions
received by the Depositary from participants with respect to ownership of
beneficial interests in such Registered Global Security.
Bearer Global Security. The Debt Securities of a series may also be issued
in the form of one or more bearer global Securities (a "Bearer Global Security")
that will be deposited with a common depositary for Morgan Guaranty Trust
Company of New York, as operator of the Euroclear system, and Cedel Bank,
societe anonyme, or with a nominee for such depositary identified in the
Prospectus Supplement relating to such series. The specific terms and
procedures, including the specific terms of the depositary arrangement, with
respect to any portion of a series of Debt Securities to be represented by a
Bearer Global Security will be described in the Prospectus Supplement relating
to such series.
Senior DebtSENIOR DEBT
The Debt Securities and, in the case of Bearer Securities, any coupons
appertaining thereto (the "Coupons") that will constitute part of the senior
debt of the Company, if issued, will be issued under the Senior Debt Indenture
and will rank pari passu with all other unsecured and unsubordinated debt of the
Company.
Senior Subordinated DebtSENIOR SUBORDINATED DEBT
The Debt Securities and Coupons that will constitute part of the senior
subordinated debt of the Company, if issued, will be issued under the Senior
Subordinated Debt Indenture and will be subordinate and junior in right of
payment, to the extent and in the manner set forth in the Senior Subordinated
Debt Indenture, to all "Senior Indebtedness" of the Company. The Senior
Subordinated Debt Indenture defines "Senior Indebtedness" as the principal of
(and, premium, if any) and unpaid interest (including post-petition interest) or
accrued original issue discount on and other amounts due on or in connection
with any Debt (as defined below) incurred, assumed or guaranteed by the Company,
whether outstanding on the date of the Indenture or thereafter incurred, assumed
or guaranteed, and all renewals, extensions and refundings of any such Debt;
provided, however, that the following will not constitute Senior Indebtedness:
(i) any Debt of the Company as to which, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that such Debt is subordinate in right of payment to all
other Debt of the Company not expressly subordinated to such Debt; (ii) any Debt
of the Company which by its terms refers explicitly to the senior subordinated
Debt Securities and states that such Debt shall not be senior in right of
payment thereto; (iii) any
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Debt of the Company in respect of the senior subordinated Debt Securities; (iv)
any Debt of the Company to any subsidiary of the Company; (v) any Debt of the
Company to any joint venture or partnership, which joint venture or partnership
is required, under generally accepted accounting principles, to be consolidated
in the Company's consolidated financial statements; and (vi) the subordinated
Debt Securities and any other Debt of the Company which by its terms ranks pari
passu with or subordinate to the subordinated Debt Securities. (Senior
Subordinated Debt Indenture; Section 13.1) The Company will not issue any Debt
which is subordinated in right of payment to any other Debt of the Company and
which is not expressly made pari passu with, or subordinate and junior in right
of payment to, the senior subordinated Debt Securities. (Senior Subordinated
Debt Indenture Section; 3.7) Debt is defined in the Senior Subordinated Debt
Indenture to mean, with respect to any person at any date, without duplication,
(A) all obligations of such person for borrowed money, (B) all obligations of
such person evidenced by bonds, debentures, notes or other similar instruments,
(C) all Debt of others secured by a lien on any asset of such person, whether or
not such Debt is assumed by such person, (D) all Debt of others for the payment
of which such person is responsible or liable as obligor or guarantor, (E) all
obligations of such person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto), (F) all
obligations of such person to pay the deferred purchase price of property or
services, except Trade Payables, and (G) all obligations of such person as
lessee under Capital Leases. (Senior Subordinated Debt Indenture; Section 1.1)
By reason of such subordination, in the event of dissolution, insolvency,
bankruptcy or other similar proceedings, upon any distribution of assets, (i)
holders of Senior Indebtedness will be entitled to be paid in full before
payments may be made on the senior subordinated Debt Securities and the holders
of senior subordinated Debt Securities will be required to pay over their share
of such distribution to the holders of Senior Indebtedness until such Senior
Indebtedness is paid in full and (ii) creditors of the Company who are neither
holders of senior subordinated Debt Securities nor holders of Senior
Indebtedness may recover less, ratably, than holders of Senior Indebtedness and
may recover more, ratably, than the holders of the senior subordinated Debt
Securities. (Senior Subordinated Debt Indenture; Section 13.2)
In the event the senior subordinated Debt Securities are declared or become
due and payable prior to their maturity by reason of the occurrence of an Event
of Default, then the Company is obligated to promptly notify holders of Senior
Indebtedness of such acceleration. The Company may not pay the senior
subordinated Debt Securities until 135 days have passed after such acceleration
occurs and may thereafter pay the senior subordinated Debt Securities only if
the terms of the Indenture otherwise permit payment at that time. (Senior
Subordinated Debt Indenture; Section 13.3)
No payment of principal, interest, or any other amount owing with respect
to any of the senior subordinated Debt Securities may be made, nor may the
Company acquire any senior subordinated Debt Securities except as set forth in
the Indenture, if any default with respect to Senior Indebtedness occurs and is
continuing that permits the acceleration of the maturity thereof and, unless
such default relates to a failure by the Company to make any payment in respect
of such Senior Indebtedness when due or within any applicable grace period (a
"Payment Default"), such default is either the subject of judicial proceedings
or the Company receives notice of the default. Notwithstanding the foregoing,
the Company may resume payments in respect of the senior subordinated Debt
Securities and may acquire senior subordinated Debt Securities if: (i)(a) 135
days pass after, in the case of such a Payment Default, the later of the date
such payment was due and the expiration of any applicable grace period for such
payment or, in the case of any other such default, the date that the related
judicial proceedings commence or that notice of the default is given to the
Company, as the case may be, and (b) the Senior Indebtedness in respect of which
such default exists has not been declared due and payable in its entirety within
such 135 day period or, if declared due and payable, such declaration has been
rescinded, waived or annulled; or (ii) the default with respect to the Senior
Indebtedness is cured or waived and, in each case described in the foregoing
clauses (i) and (ii), the terms of the Indenture otherwise permit the payment or
acquisition of the senior subordinated Debt Securities at that time. (Senior
Subordinated Debt Indenture; Section 13.4) If this Prospectus is being delivered
in connection with a series of senior subordinated Debt Securities, the
accompanying Prospectus Supplement or the information incorporated herein by
reference will set forth the approximate amount of Senior Indebtedness
outstanding as of the end of the most recent fiscal quarter.
Subordinated Debt9
12
SUBORDINATED DEBT
The Debt Securities and Coupons that will constitute part of the
subordinated debt of the Company will be issued under the Subordinated Debt
Indenture and will be subordinate and junior in right of payment, to the extent
and in the manner set forth in the Subordinated Debt Indenture, to all "Senior
Indebtedness" of the Company. The Subordinated Debt Indenture defines "Senior
Indebtedness" as the principal of (and premium, if any) and unpaid interest
(including post-petition interest) or accrued original issue discount on and
other amounts due on or in connection with any Debt (as defined below) incurred,
assumed or guaranteed by the Company, whether outstanding on the date of the
Indenture or thereafter incurred, assumed or guaranteed, and all renewals,
extensions and refundings of any such Debt; provided, however, that the
following will not constitute Senior Indebtedness: (i) any Debt of the Company
as to which, in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is expressly provided that such Debt is
subordinate in right of payment to all other Debt not expressly subordinated to
such Debt; (ii) any Debt of the Company which by its terms refers explicitly to
the subordinated Debt Securities and states that such Debt shall not be senior
in right of payment thereto; (iii) any Debt in respect of the subordinated Debt
Securities; (iv) any Debt of the Company to any Subsidiary of the Company; and
(v) any Debt to any joint venture or partnership, which joint venture or
partnership is required, under generally accepted accounting principles, to be
consolidated in the Company's consolidated financial statements. (Subordinated
Debt Indenture; Section; 13.1) The definition of Debt in the Subordinated Debt
Indenture is the same as in the Senior Subordinated Debt Indenture and is
described above under "Senior Subordinated Debt." (Subordinated Debt Indenture;
Section 1.1) There is no provision in the Subordinated Debt Indenture preventing
the Company from issuing any Debt which is subordinated in right of payment to
any other debt of the Company and which is not expressly made pari passu with,
or subordinate and junior in right of payment to, the subordinated debt securitiesDebt
Securities.
By reason of such subordination, upon any distribution of assets, in the
event of dissolution, insolvency, bankruptcy or other similar proceedings, (i)
holders of Senior Indebtedness will be entitled to be paid in full before
payments may be made on the subordinated Debt Securities and the holders of
subordinated Debt Securities will be required to pay over their share of such
distribution to the holders of Senior Indebtedness until such Senior
Indebtedness is paid in full and (ii) creditors of the Company who are neither
holders of subordinated Debt Securities nor holders of Senior Indebtedness may
recover less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than the holders of the subordinated Debt Securities. (Subordinated
Debt Indenture; Section 13.2)
In the event the subordinated Debt Securities are declared or become due
and payable prior to their maturity by reason of the occurrence of an Event of
Default, then the Company is obligated to promptly notify holders of Senior
Indebtedness of such acceleration. The Company may not pay the subordinated Debt
Securities until 135 days have passed after such acceleration occurs and may
thereafter pay the subordinated Debt Securities only if the terms of the
Indenture otherwise permit payment at that time. (Subordinated Debt Indenture;
Section 13.3)
The conditions and limitations on payments by the Company with respect to
any of the subordinated Debt Securities in the event of any default with respect
to any Senior Indebtedness are the same as are provided for under the Senior
Subordinated Debt Indenture and are described above under "Senior Subordinated
Debt." (Subordinated Debt Indenture; Section 13.4) If this Prospectus is being
delivered in connection with a series of subordinated Debt Securities, the
accompanying Prospectus Supplement or the information incorporated herein by
reference will set forth the approximate amount of Senior Indebtedness
outstanding as of the end of the most recent fiscal quarter.
Certain Covenants of the CompanyCERTAIN COVENANTS OF THE COMPANY
Merger, Consolidation, Sale, Lease or Conveyance. Each Indenture provides
that the Company will not merge or consolidate with or into any other person and
will not sell, lease or convey all or substantially all its assets to any
person, unless the Company shall be the continuing corporation, or the successor
corporation or person that acquires all or substantially all the assets of the
Company shall be a corporation organized and
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existing under the laws of the United States or a State thereof or the District
of Columbia and shall expressly assume all obligations of the Company under such
Indenture and the Debt Securities issued thereunder, and immediately after such
merger, consolidation, sale, lease or conveyance, the Company, such person or
such successor corporation shall not be in default in the performance of the
covenants and conditions of such Indenture to be performed or observed by the
Company. (Indentures; Section 9.1)
Events of DefaultEVENTS OF DEFAULT
An Event of Default is defined under each Indenture with respect to Debt
Securities of any series issued under such Indenture as being: (i) default for
30 days in payment of any interest on any Debt Securities of such series; (ii)
default in payment of any principal of the Debt Securities of such series,
either at maturity (or upon any redemption), by declaration of acceleration or
otherwise; (iii) default in payment of any sinking fund installment due under
the terms of the Debt Securities of such series; (iv) default in the
performance, or breach, of any other covenant or warranty of the Company in
respect of the Debt Securities of such series for 60 days after written notice
to the Company by the Trustee or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the outstanding Securities of
all series affected thereby; (v) certain events of bankruptcy, insolvency or
reorganization; or (vi) any other Event of Default provided in any relevant
Supplemental Indenture or resolution of the Board of Directors under which such
series of Debt Securities is issued or in the form of Debt Security for such
series. (Indentures; Section 5.1)
Each Indenture provides that (i) if an Event of Default due to the default
in payment of principal of, premium, if any, or interest on, or sinking fund
installment in respect of any series of Debt Securities issued under such
Indenture or due to the default in the performance or breach of any other
covenant or warranty of the Company applicable to the Debt Securities of such
series but not applicable to all outstanding Debt Securities issued under such
Indenture shall have occurred and be continuing, either the Trustee, or the
holders of not less than 25% in principal amount of the Debt Securities of such
series (voting as a separate class) issued under such Indenture and then
outstanding may then declare the principal of all Debt Securities of such series
and interest accrued thereon to be due and payable immediately; and (ii) if an
Event of Default due to a cross-default or cross-acceleration or a default in
the performance or breach of any other of the covenants or agreements in such
Indenture applicable to all outstanding Debt Securities issued thereunder and
then outstanding or due to certain events of bankruptcy, insolvency and
reorganization of the Company shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of all Debt
Securities issued under such Indenture and then outstanding (treated as one
class) may declare the principal of all such Debt Securities and interest
accrued thereon to be due and payable immediately. Upon certain conditions such
declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal of (or premium, if any) or interest
on such Debt Securities) by the holders of a majority in principal amount of the
Debt Securities of all such affected series then outstanding, voting as a
separate class or as a single class, as applicable. (Indentures; Sections 5.1
and 5.10)
Each Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during a default to act with the required standard of care,
to be indemnified by the holders of Debt Securities issued under such Indenture
before proceeding to exercise any right or power under such Indenture at the
request of such holders. (Indentures; Section 6.2) Subject to such provisions in
each Indenture for the indemnification of the Trustee and certain other
limitations, the holders of a majority in principal amount of the Debt
Securities of each series affected (with each series voting as a separate class)
issued under such Indenture and then outstanding may 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. (Indentures; Section
5.9)
Each Indenture provides that no holder of Debt Securities of any series
issued under such Indenture may institute any action against the Company under
such Indenture (except actions for payment of overdue principal or interest)
unless such holder previously shall have given to the Trustee written notice of
default and continuance thereof and unless the holders of not less than 25% in
principal amount of the Debt Securities of such series issued under such
Indenture and then outstanding shall have requested the Trustee to institute
such action and shall have offered the Trustee reasonable indemnity, the Trustee
shall not have instituted such action
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within 60 days of such request and the Trustee shall not have received direction
inconsistent with such written request by the holders of a majority in principal
amount of the Debt Securities of each affected series (with each series voting
as a separate class) issued under such Indenture and then outstanding.
(Indentures; Sections 5.6 and 5.9)
Each Indenture contains a covenant that the Company will file annually with
the Trustee a certificate as to the Company's compliance with the covenants and
conditions under such Indenture. (Indentures; Section 3.5)
Defeasance and DischargeDEFEASANCE AND DISCHARGE
The Company can discharge or defease its obligations under each Indenture
as set forth below. (Indentures; Section 10)
The Company may discharge certain obligations to holders of any series of
Debt Securities issued under an Indenture (excluding its obligation to pay the
principal of, premium, if any, and interest on the Debt Securities of such
series) that have not already been delivered to the Trustee for cancellation and
that have either become due and payable or are by their terms due and payable
within one year (or scheduled for redemption within one year) by irrevocably
depositing with the Trustee cash or, in the case of Debt Securities payable only
in U.S. dollars, U.S. Government Obligations (as defined in such Indenture), or
a combination thereof, as trust funds in an amount certified to be sufficient to
pay at maturity (or upon redemption)redemption or repayment at the option of the holder)
the principal of, premium, if any, and interest ofon such Debt Securities.
The Company may also discharge any and all of its obligations to holders of
any series of Debt Securities issued under an Indenture at any time (including
its obligation to pay the principal of, premium, if any, and interest on the
Debt Securities of such series) ("defeasance"), but may not thereby avoid its
duty to register the transfer or exchange of such series of Debt Securities, to
replace any temporary, mutilated, destroyed, lost or stolen series of Debt
Securities or to maintain an office or agency in respect of such series of Debt
Securities and certain other obligations. The Company may instead be released
with respect to any outstanding series of Debt Securities issued under the
relevant Indenture from the obligations imposed by Section 9.1the covenants specified in
the accompanying Prospectus Supplement (other than its obligation to pay the
principal of, premium, if any, and interest on the applicable Indenture (which
contains the covenant described above limiting consolidations, mergers, asset
sales and leases)Debt Securities of such
series), and omit to comply with such SectionCovenants without creating an Event of
Default ("covenant defeasance"). Defeasance or covenant defeasance may be
effected only if, among other things: (i) the Company irrevocably deposits with
the Trustee cash or, in the case of Debt Securities payable only in U.S.
dollars, U.S. Government Obligations, or a combination thereof, as trust funds
in an amount certified to be sufficient to pay at maturity (or upon redemption
or repayment at the option of the holders) the principal of and interest on all
outstanding Debt Securities of such series issued under such Indenture; (ii) the
Company delivers to the Trustee an opinion of counsel to the effect that the
holders of such series of Debt Securities will not recognize income, gain or
loss for United States federal income tax purposes as a result of such
defeasance or covenant defeasance and that defeasance or covenant defeasance
will not otherwise alter such holders' United States federal income tax
treatment of principal, premium, if any, and interest payments on such series of
Debt Securities; and (iii) (a) in the case of the Senior Subordinated and
Subordinated Debt Indentures, no event or condition shall exist that, pursuant
to certain provisions described under "Senior Subordinated Debt" and
"Subordinated Debt" above, would prevent the Company from making payments of
principal of (and premium, if any) and interest on the relevant Debt Securities
at the date of the irrevocable deposit referred to above or at any time during
the period ending on the 91st day after such deposit date and (b) the Company
delivers to the Trustee an opinion of counsel to the effect that (1) in the case
of the Senior Subordinated and Subordinated Debt Indentures, the trust funds
will not be subject to any rights of holders of Senior Indebtedness (as defined
in the applicable Indenture) and (2) in the case of all Debt Securities, after
the 91st day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally, except that if a court were to rule under
any such law in any case or proceeding that the trust funds remained property of
the Company, then the Trustee and the holders of the relevant Debt Securities
would be entitled to certain rights as secured creditors in such trust funds.
Modification of the Indentures12
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MODIFICATION OF THE INDENTURES
Each Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (i) secure any Debt Securities; (ii) evidence the assumption by a successor
corporation of the obligations of the Company; (iii) add covenants for the
protection of the holders of Debt Securities; (iv) cure any ambiguity or correct
any inconsistency in such Indenture; (v) establish the forms or terms of Debt
Securities of any series; (vi) evidence the acceptance of appointment by a
successor trustee; or (vii) add to, change or eliminate any provisions of the
relevant Indenture, provided that any such addition, change or elimination shall
not apply to any Debt Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision or
modify the rights of the holder of any such Debt Security with respect to such
provision. (Indentures; Section 8.1)
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of Debt Securities of all series issued under such Indenture
then outstanding and affected (voting as one class), to add any provisions to,
or change in any manner or eliminate any of the provisions of, such Indenture or
modify in any manner the rights of the holders of the Debt Securities of each
series so affected; provided that the Company and the Trustee may not, without
the consent of the holder of each outstanding Debt Security affected thereby,
(i) extend the stated maturity of the principal of any Debt Security, or reduce
the principal amount thereof or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption or repayments
thereof or make the principal thereof (including any amount in respect of
original issue discount), or interest thereon payable in any coin or currency
other than that provided in the Debt Securities or reduce the amount of any
original issue discount security payable upon acceleration or provable in
bankruptcy or modify the percentage of holders required to waive any default or
rescind and annul any declaration of acceleration or impair the right to
institute suit for the enforcement of any payment on any Debt Security when due
or if the Debt Securities provide therefor, any right of repayment of the holder
thereof, or (ii) reduce the aforesaid percentage of Debt Securities of any
series issued under such Indenture, the consent of the holders of which is
required for any such modification. (Indentures; Section 8.2)
The Senior Subordinated and Subordinated Debt Indentures may not be amended
to alter the subordination of any outstanding Debt Securities issued under such
Indenture without the consent of each holder of Senior Indebtedness (as defined
therein) then outstanding that would be adversely affected thereby. (Indentures;
Section 8.6)
Applicable LawAPPLICABLE LAW
The Indentures will provide that the Debt Securities and the Indentures
will be governed by and construed in accordance with the laws of the State of
New York. (Indentures; Section 11.8)
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
Except as may otherwise be provided in the Prospectus Supplement
applicable thereto, in compliance with United States federal income tax laws
and regulations, Bearer Securities (including Bearer Securities in global
form) will not be offered, sold, resold or delivered, directly or indirectly,
in the United States or its possessions or to United States persons (as
defined below), except as otherwise permitted by the United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D). Any underwriters, agents and dealers
participating in the offerings of Bearer Securities, directly or indirectly,
must agree that they will not, in connection with the original issuance of any
Bearer Securities or during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) (the "restricted period"),
offer sell, resell or deliver, directly or indirectly, any Bearer Securities
in the United States or its possessions or to United States persons (other
than as permitted by the applicable Treasury Regulations described above). In
addition, any such underwriters, agents and dealers must have procedures
reasonably designed to ensure that its employees or agents that are directly
engaged in selling Bearer Securities are aware of the above restrictions to
the offering, sale, resale or delivery of Bearer Securities. Moreover, Bearer
Securities (other than temporary global Debt Securities and Bearer Securities
that satisfy the requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(iii)) and any Coupons appertaining thereto will not be
delivered in definitive form unless the Company has received a signed
certificate in writing (or an electronic certificate described in United
States Treasury Regulations Section 1.163-5(2)(i)(D)(3)(ii)) stating that on
such date such Bearer Security (i) is owned by a person that is not a United
States person, (ii) is owned by a United States person that (a) is a foreign
branch of a United States financial institution (as defined in the United
States Treasury Regulations Section 1.165-12(c)(1)(v)) (a "financial
institution") purchasing for its own account or for resale, or (b) is
acquiring such Bearer Security through a foreign branch of a United States
financial institution and that holds the bearer Security through such
financial institution through such date (and in either case (a) or (b), each
such United States financial institution agrees, on its own behalf or through
its agent, that the Company may be advised that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder) or (iii) is owned by a
United States or foreign financial institution for the purposes of resale
during the restricted period and, in addition, if the owner of such Bearer
Security is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)), such
financial institution certifies that it has not acquired the Bearer Security
for purposes of resale directly or indirectly to a United States person or to
a person within the United States or its possessions.
Bearer Securities (other than temporary global Debt Securities) and any
Coupons appertaining thereto will bear a legend substantially to the following
effect: "Any United States person who holds this obligation will be subject
to limitations under the United States federal income tax laws, including the
limitations provided in Sections 165(j) and 1287(a) of the United States
Internal Revenue Code." The sections referred to in such legend provide that,
with certain exceptions, a United States person will not be permitted to
deduct any loss, and will not be eligible for capital gain treatment with
respect to any gain, realized on the sale, exchange or redemption of such
Bearer Security or Coupon.
As used herein "United States person" means a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
DESCRIPTION OF CAPITAL STOCK
The Company is authorized to issue (i) 100,000,000 shares of Common Stock,
of which 38,882,83638,989,834 shares were outstanding as of October 23, 1996,December 1, 1997, (ii)
25,000,000 shares of Special Common Stock, none of which is outstanding and
(iii) 10,000,000 shares of preferred stock, par value $1.00 per share
("Preferred Stock"), none of which is outstanding. At October 23, 1996,December 1, 1997, there
were 2,2041,882 holders of record of the Common Stock. The following summaries of
certain provisions of the Company's Certificate of Incorporation and Shareholder
Rights Plan do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, the Company's Certificate of Incorporation
and Shareholder Rights Plan, copies of which have been incorporated by reference
as exhibits to the Registration Statement of which this Prospectus is a part.
Common Stock and Special Common Stock13
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COMMON STOCK AND SPECIAL COMMON STOCK
The holders of Common Stock and Special Common Stock generally have
identical rights except that holders of Common Stock are entitled to one vote
per share while holders of Special Common Stock are entitled to one-tenth of a
vote per share on all matters to be voted on by stockholders. Holders of shares
of Common Stock and Special Common Stock are not entitled to cumulate their
votes in the election of directors. Generally all matters to be voted on by
stockholders must be approved by a majority of the combined voting power of the
outstanding shares of Common Stock and Special Common Stock, voting together as
a single class, subject to any voting rights of holders of outstanding Preferred
Stock, if any, and amendments to the Company's Certificate of Incorporation must
be approved by a majority of the combined voting power of all shares of Common
Stock and Special Common Stock, voting together as a single class. However,
amendments to the Company's Certificate of Incorporation (i) that adversely
affect the rights of the Common Stock or Special Common Stock also must be
approved by a majority of the shares of such class voting as a separate class,
(ii) that modify the classified board provisions contained in the Certificate of
Incorporation must be approved by an 80% supermajority of the combined voting
power of all shares of outstanding capital stock (including Common Stock and any
outstanding Special Common Stock and voting Preferred Stock) and (iii) that
modify the "fair price" provisions contained in the Company's Certificate of
Incorporation must likewise be approved by an 80% supermajority of the combined
voting power of all shares of outstanding voting stock excluding voting stock
held by a Related Person (see "Additional Provisions of the Company's
Certificate of Incorporation") and its Affiliates and Associates (as defined in
the Certificate of Incorporation).
Preemptive Rights; Redemption; Nonassessable. The holders of Common Stock
and Special Common Stock have no preemptive or other subscription or conversion
rights and there are no redemption provisions with respect to such shares. All
the outstanding shares of Common Stock are fully paid and nonassessable and the
shares of Special Common Stock if issued will be fully paid and nonassessable.
Dividends. Subject to the prior dividend rights of holders of outstanding
Preferred Stock, if any, the holders of Common Stock and Special Common Stock
are entitled to receive such dividends and distributions, if any, as may be
declared from time to time by the Board of Directors in its discretion from
funds legally available therefor, and shall share equally in all such dividends
and distributions on a per share basis. In the case of dividends or other
distributions payable in capital stock other than Preferred Stock (including
stock splits), only shares of Common Stock shall be distributed with respect to
Common Stock and only shares of Special Common Stock shall be paid or
distributed with respect to Special Common Stock, in each case in an amount per
share equal to the amount per share distributed with respect to the Common Stock
or the Special Common Stock, as the case may be. In the case of any combination
or reclassification of Common Stock or specialSpecial Common Stock, the shares of each
such class shall be combined or reclassified in such manner so as to retain the
proportionate interest of each such class after giving effect to such
combination or reclassification.
Distributions on Liquidation. The holders of Common Stock and Special
Common Stock are entitled to share pro raterata in any distribution upon the
liquidation, dissolution or winding up of the Company, after giving effect to
any liquidation preference of any Preferred Stock.
Reorganization, Consolidation or Merger. In the event of a reorganization,
consolidation or merger of the Company, each holder of a share of Common Stock
shall be entitled to receive the same kind and amount of property receivable by
a holder of a share of Special Common Stock and each holder of a share of
Special Common Stock shall be entitled to receive the same kind and amount of
property receivable by a holder of Common Stock.
Preferred StockPREFERRED STOCK
The Company is authorized to issue Preferred Stock in one or more series
with such designations, rights, preferences and limitations as the Board of
Directors may determine, including the consideration to be received therefor,
the number of shares comprising each series, dividend rates, redemption
provisions, liquidation preferences, mandatory retirement provisions, conversion
rights and voting rights, all without any
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stockholder approval. The future issuance of Preferred Stock with voting rights
could make an acquisition of control of the Company more difficult and could
adversely affect the rights of holders of Common Stock. Preferred stockholders
typically would be entitled to satisfaction in full of specified dividend and
liquidation rights before any payment of dividends or distribution of assets on
liquidation is made to holders of the Common Stock. If voting rights are granted
to the holders of Preferred Stock, the voting power of the Common Stock will be
diluted and under some circumstances control of the Company would shift from the
holders of the Common Stock to the holders of Preferred Stock. Certain
fundamental matters requiring stockholder approval (such as mergers, sale of
assets, and certain amendments to the Certificate of Incorporation) may require
approval by the separate vote of the holders of the Common Stock and the
Preferred Stock.
Shareholder Rights PlanSHAREHOLDER RIGHTS PLAN
On January 11, 1989, the Board of Directors declared a dividend of one
Preferred Stock share purchase right (a "Right") for each share of Common Stock
outstanding on March 7, 1989. Each Right entitles the registered holder, subject
to the occurrence of certain events, to purchase from the Company one
one-hundredth of a share (a "Unit") of Series A Participating Cumulative
Preferred Stock of the Company (the "Rights Preferred Stock"), at a purchase
price of $30.00 per Unit subject to adjustment. The terms of the Rights are set
forth in a rights agreement (the "Shareholder Rights Plan") between the Company
and ChaseMellon Shareholder Services, L.L.C. (assignee of the Bank of America
National Trust and Savings Association, successor-by-merger to Security Pacific
National Bank,Bank), as Rights Agent.
Until the Rights Distribution Date (as defined below) or the earlier
redemption, expiration or termination of the Rights, (i) the Rights are
evidenced by the Common Stock certificates and are transferred with, and only
with such certificates which contain a notation incorporating the Shareholder
Rights Plan by reference and (ii) the surrender for transfer of any certificates
for Common Stock constitutes a transfer of the Rights associated with the Common
Stock represented by such certificate. The Rights will separate from the Common
Stock and will be distributed on the date (the "Rights Distribution Date") which
occurs upon the earlier of (a) ten days following the date (the "Stock
Acquisition Date") of a public announcement that a person has become an
Acquiring Person (as defined below) or (b) ten business days following the
commencement of a tender offer or exchange offer that would result in a person
becoming an Acquiring Person. Under the Shareholder Rights Plan, an "Acquiring
Person" means any person who or which, together with all Affiliates and
Associates (as defined in the Shareholder Rights Plan) of such person,
beneficially owns 20% or more of the aggregate voting power of the outstanding
Common Stock, but does not include (x) the Company or any of its subsidiaries or
any of their respective employee benefit plans or (y) a specifically designated
individual formerly affiliated with the Company or certain of his Affiliates or
Associates.
The Rights are not exercisable until the Rights Distribution Date and will
expire at the close of business on March 7, 1999, unless earlier redeemed by the
Company as described below.
As soon as practicable after the Rights Distribution Date, Rights
CertificateCertificates will be mailed to holders of Recordrecord of the Common Stock as of the
close of business on the Rights Distribution Date and, thereafter, the separate
Rights Certificates alone will represent the Rights. Except (i) in connection
with the exercise of employee stock options or under any employee benefit plan
or arrangement, (ii) in connection with the exercise, conversion or exchange of
securities issued by the Company after the date of the Shareholder Rights Plan
and (iii) as otherwise determined by the Board of Directors, only Common Stock
issued prior to the Rights Distribution Date will be issued with Rights.
Notwithstanding the foregoing, no such Rights shall be issued (i) if, and to the
extent that, the Company shall be advised by counsel that such issuance would
create a significant risk of material adverse tax consequences to the Company or
the person to whom such Rights would be issued, (ii) if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof and (iii) after the earlier of the redemption and expiration of the
Rights.
If at any time following the Stock Acquisition Date, (i) the Company is
acquired in a merger or other business combination transaction or (ii) 50% or
more of the Company's assets or earning power is sold, each
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holder of a Right shall thereafter have the right to receive, upon exercise,
common stock of the acquiring company having a value equal to two times the
current purchase price of the Right.
If (i) any person becomes an Acquiring Person or (ii) the Company is the
surviving corporation in a merger with an Acquiring Person and the Common Stock
is not changed or exchanged, proper provision will be made so that each holder
of a Right originally issued to a holder of Common Stock, other than Rights that
are, or (under certain circumstances specified in the Shareholder Rights Plan)
were, beneficially owned by an Acquiring Person (which will thereafter be void),
will thereafter have the right to receive upon exercise that number of shares of
Common Stock (the "Exercise Number") having a market value equal to two times
the exercise price of the Right. The events described in this and the
immediately preceding paragraph are referred to as the "Triggering Events."
The purchase price payable for a Unit and the number of Units issuable upon
exercise of the Rights is subject to adjustment from time to time in certain
cases. In addition, the number of Rights associated with each share of Common
Stock is subject to adjustment from time to time in the event of a stock
dividend on, or a subdivision or combination of, Common Stock.
With certain exceptions, no adjustment in the purchase price will be
required until cumulative adjustments amount to at least one percent of the
purchase price. No fractional shares of Common Stock will be issued and in lieu
thereof, an adjustment in cash will be made based on the market price of the
Common Stock on the last trading date prior to the date on which such fractional
shares would have been otherwise issuable. The Board of Directors may redeem the
Rights in whole, but not in part, at the redemption price of $.01 per Right at
any time prior to the expiration of a ten day period following the Stock
Acquisition Date. The foregoing redemption period can be extended by a majority
of Continuing Directors (as defined in the Shareholder Rights Plan) at any time
prior to the date on which the Rights would otherwise become nonredeemable.
Immediately upon the action of the Board of Directors ordering redemption of the
Rights, the Rights will terminate, no further Rights will be issued and the only
right of the holders of Rights will be to receive the redemption price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
Prior to the Rights Distribution Date, the Company may, subject to certain
exceptions, amend any provision of the Shareholder Rights Plan without the
approval of any holders of Common Stock.
Additional Provisions of the Company's Certificate of IncorporationADDITIONAL PROVISIONS OF THE COMPANY'S CERTIFICATE OF INCORPORATION
The Company's Certificate of Incorporation contains "fair price" provisions
which are intended to protect the Company's stockholders from certain possible
pricing abuses in connection with, among other things, unsolicited attempts to
gain control of the Company. These provisions require the affirmative vote of
the holders of 80% of the outstanding shares of voting stock of the Company held
by persons other than a Related Person in order to permit certain mergers and
other major corporate transactions involving the Company and a Related Person,
unless the merger or other transaction is approved by at least two-thirds of the
Continuing Directors (as defined in the Certificate of Incorporation) or certain
"fair price" criteria are met. A "Related Person" is defined as any individual,
corporation, partnership or entity that, together with its Affiliates and
Associates (as defined in the Certificate of Incorporation), beneficially owns
in the aggregate 20% or more of the Company's outstanding voting stock, except
for (i) any person or entity whose acquisition of such voting stock was approved
in advance by at least two-thirds of the Continuing Directors, (ii) any
fiduciary in respect of any employee benefit plan of the Company or its
subsidiaries or (iii) a specifically designated corporation formerly affiliated
with the Company or any of its Affiliates or Associates. The "fair price"
provisions are deemed to have been satisfied if, in general, the cash or other
consideration received per share by holders of each class or series of the
Company's outstanding voting stock in the merger or other transaction is not
less than the highest price paid at any time by the Related Person in acquiring
stock of such class or series, as determined by two-thirds of the Continuing
Directors. The term "Continuing Director" means a director of the Company
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who was a member of the Board of Directors prior to the time that a Related
Person involved in a merger or other major corporate transaction became a
Related Person.
The Company has also adopted certain defensive measures that include
classifying the Board of Directors into three classes of directors, requiring a
supermajority vote of the Company's stockholders to effect certain amendments to
its Certificate of Incorporation and bylaws, restricting stockholders' ability
to call special meetings of stockholders, implementing the Shareholder Rights
Plan and amending the Certificate of Incorporation to provide that Section 203
of the Delaware General Corporation Law shall apply to the Company. In addition,
the Certificate of Incorporation prohibits stockholder action by written
consent.
The foregoing defensive measures, together with the provisions of the
Shareholder Rights Plan and the Certificate of Incorporation, in certain
circumstances could require a potential acquiror of the Company and to pay a higher
price than might otherwise be the case or to obtain the approval of a larger
percentage of the stockholders than might otherwise be the case, anyand may have
the effect of discouraging a proxy contest or making more difficult a merger
involving the Company, or a tender offer, open-market purchase program or other
purchase of the Company's shares, in circumstances that would give stockholders
the opportunity to realize a premium over the then-prevailing market prices for
their shares.
SectionSECTION 203 of the Delaware General Corporation LawOF THE DELAWARE GENERAL CORPORATION LAW
As a Delaware corporation, the Company is subject to the provisions of
Section 203 of the General Corporation Law of the State of Delaware. Section 203
generally provides that if a person or group acquires 15% or more of a
corporation's voting stock (thereby becoming an "interested stockholder")
without prior board approval, such interested stockholder may not, for a period
of three years, engage in a wide range of business combination transactions with
the corporation. However, this restriction does not apply to a person who
becomes an interested stockholder in a transaction resulting in the interested
stockholder owning at least 85% of the corporation's voting stock (excluding
from the outstanding shares, shares held by officer-directorsofficers, directors or pursuant to
employee stock plans without confidential tender offer decisions), or to a
business combination approved by the board of directors and authorized by the
affirmative vote of a least 66 2/3% of the outstanding voting stock not owned by
the interested stockholder. In addition, Section 203 does not apply to certain
business combinations proposed subsequent to the public announcement of
specified business combination transactions which are not opposed by the board
of directors.
Transfer AgentTRANSFER AGENT
The transfer agent and registrar for the Company's Common Stock is
ChaseMellon Shareholder Services, L.L.C.
DESCRIPTION OF WARRANTS
The Company may issue warrants to purchase Debt Securities (the "Debt
Warrants"), Preferred Stock (the "Preferred Stock Warrants") or, Common Stock (the
"Common Stock Warrants") or other securities issued by the Company or another
issuer (the "Other Warrants", collectively with the Common Stock Warrants, the
Debt Warrants and the Preferred Stock Warrants, the "Warrants"). Warrants may be
issued independently or together with any Securities and may be attached to or
separate from such Securities. The Warrants are to be issued under warrant
agreements (each a "Warrant Agreement") to be entered into between the Company
and a bank or trust company, as warrant agent (the "Warrant Agent"), all as
shall be set forth in the Prospectus Supplement relating to the Warrants being
offered pursuant thereto.
Debt WarrantsDEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt
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Warrants and the debt warrant certificates representing such Debt Warrants,
including the following: (i) the title of such Debt Warrants; (ii) the aggregate
number of such Debt Warrants; (iii) the price or prices at which such Debt
Warrants will be issued; (iv) the designation, aggregate principal amount and
terms of the Debt Securities purchasable upon exercise of such Debt Warrants,
and the procedures and conditions relating to the exercise of such Debt
Warrants; (v) the date, if any, on and after which such Debt Warrants and the
related Debt Securities will be separately transferable; (vi) the principal
amount of Debt Securities purchasable upon exercise of each Debt Warrant, and
the price at which such principal amount of Debt Securities may be purchased
upon such exercise; (vii) the date on which the right to exercise such Debt
Warrants shall commence, and the date on which such right shall expire; (viii)
the maximum or minimum number of such Debt Warrants which may be exercised at
any time; (ix) a discussion of material federal income tax considerations, if
any; and (x) any other terms of such Debt Warrants and terms, procedures and
limitations relating to the exercise of such Debt Warrants.
Debt Warrant certificates will be exchangeable for new Debt Warrant
certificates of different denominations, and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated in
the Prospectus Supplement. Prior to the exercise of their Debt Warrants, holders
of Debt Warrants will not have any of the rights of holders of the securities
purchasable upon such exercise and will not be entitled to payments of principal
of (or premium, if any) or interest, if any, on the securities purchasable upon
such exercise.
Other WarrantsPREFERRED STOCK WARRANTS, COMMON STOCK WARRANTS, AND OTHER WARRANTS
The applicable Prospectus Supplement will describe the following terms of
Preferred Stock Warrants, and Common Stock Warrants, and Other Warrants in respect
of which this Prospectus is being delivered: (i) the title of such Warrants;
(ii) the Securitiessecurities for which such Warrants are exercisable; (iii) the price or
prices at which such Warrants will be issued; (iv) if applicable, the number of
such Warrants issued with each share of Preferred Stock, Common Stock or Common Stock;other
securities of the Company or another issuer; (v) any provisions for adjustment
of the number or amount of shares of Preferred Stock, or Common Stock or other
securities of the Company or another issuer receivable upon exercise of such
Warrants or the exercise price of such Warrants; (vi) if applicable, the date on
and after which such Warrants and the related Preferred Stock, or Common Stock or
other securities of the Company or another issuer will be separately
transferable; (vii) if applicable, a discussion of material federal income tax
considerations; (viii) any other terms of such Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Warrants; (ix) the date on which the right to exercise such Warrants shall
commence, and the date on which such right shall expire; and (x) the maximum or
minimum number of such Warrants which may be exercised at any time.
Exercise of WarrantsEXERCISE OF WARRANTS
Each Warrant will entitle the holder of Warrants to purchase for cash such
principal amount of Debt Securities, or shares of Preferred Stock or Common Stock,
or amounts of other securities at such exercise price as shall in each case be
set forth in, or be determinable as set forth in, the Prospectus Supplement
relating to the Warrants offered thereby. Warrants may be exercised at any time
up to the close of business on the expiration date set forth in the Prospectus
Supplement relating to the Warrants offered thereby. After the close of business
on the expiration date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby. Upon receipt of payment and the
warrant certificate properly completed and duly executed at the corporate trust
office of the Warrant Agent or any other office indicated in the Prospectus
Supplement, the Company will, as soon as practicable, forward the Debt
Securities, or shares of Preferred Stock or Common Stock or other securities
purchasable upon such exercise. If less than all of the Warrants represented by
such warrant certificate are exercised, a new warrant certificate will be issued
for the remaining Warrants.
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PLAN OF DISTRIBUTION
The Securities may be sold (i) through agents, (ii) through underwriters,
(iii) through dealers or (iv) directly to purchasers (through a specific bidding
or auction process or otherwise). The distribution of Securities may be effected
from time to time in one or more transactions at a fixed price or prices, which
may be changed, or at market prices prevailing at the time of sale, at prices
relating to such prevailing market prices or at negotiated prices.
Offers to purchase the Securities may be solicited by agents designated by
the Company from time to time. Any such agent involved in the offer or sale of
the Securities will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act, of the
Securities so offered and sold.
If an underwriter or underwriters are utilized in the sale of Securities,
the Company will execute an underwriting agreement with such underwriter or
underwriters at the time an agreement for such sale is reached, and the names of
the specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transactions, including compensation of the
underwriters and dealers, if any, will be set forth in the Prospectus
Supplement, which will be used by the underwriters to make resales of the
Securities.
If a dealer is utilized in the sale of the Securities, the Company will
sell such Securities to the dealer, as principal. The dealer may then resell
such Securities to the public at varying prices to be determined by such dealer
at the time of resale. The name of the dealer and the terms of the transactions
will be set forth in the Prospectus Supplement relating thereto.
Offers to purchase the Securities may be solicited directly by the Company
and sales thereof may be made by the Company directly to institutional investors
or others. The terms of any such sales, including the terms of any bidding or
auction process, if utilized, will be described in the Prospectus Supplement
relating thereto.
Agents, underwriters and dealers 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, and any
such agents, underwriters or dealers, or their affiliates may be customers of,
engage in transactions with or perform services for the Company in the ordinary
course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Debt Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on the date stated in the Prospectus
Supplement. Such Contracts will be subject to only those conditions set forth in
the Prospectus Supplement. A commission indicated in the Prospectus Supplement
will be paid to underwriters and agents soliciting purchases of Debt Securities
pursuant to Contracts accepted by the Company.
EXPERTS
The consolidated and combined financial statements of the Company includedappearing in the
Company's Annual Report on Form 10-K of the Company(Form 10-K) for the year ended November 30, 1995 and in the Current Report on Form 8-K dated March 12, 1996 have
been audited by Ernst & Young LLP, independent auditors, as statedset forth in itstheir
report dated January 4, 1996, except as to Note 13, as to which the date is
January 22, 1996,thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the reportauthority of such firm which report is given upon their authority as experts in
accounting and auditing.
19
22
Any financial statements and schedules hereafter incorporated by reference
in the registration statement of which this prospectus is a part that have been
audited and are the subject of a report by independent auditors will be
incorporated herein by reference in reliance upon such reports and
upon thegiven on their
authority of such firms as experts in accounting and auditing to the extent covered by
consents filed with the Commission.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Davis PolkMunger, Tolles & Wardwell, New York, New York.Olson LLP, Los Angeles, California.
20
23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ItemITEM 14. Other Expenses of Issuance and Distribution.OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration fee.............................. fee .....................$ 60,606.06147,500.00
Legal fees and expenses....................... 40,000.00expenses .............. 20,000.00
Accounting fees and expenses.................. 10,000.00expenses ......... 11,000.00
Blue sky fees and expenses....................expenses ........... 10,000.00
Total................................... $120,606.06
==============
==============Printing and engraving expenses ...... 20,000.00
Miscellaneous ........................ 2,500.00
-----------
Total ................................$211,000.00
===========
All amounts are estimated except for the registration fees.
Itemfee.
ITEM 15. Indemnification of Directors and Officers.INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended, provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any such
person serving in any such capacity who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation and except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent that the Delaware
Court of Chancery or such other court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnification for such expenses which the Court of
Chancery or such other court shall deem proper.
Article 6(d) of the Company's Certificate of Incorporation provides that
each person who was or is made a party to (or is threatened to be made a party
to) or is otherwise involved in any action, suit or proceeding by reason of the
fact that such person is or was a director, officer, employee or agent of the
Company shall be indemnified and held harmless by the Company to the full extent
permitted by the General Corporation Law of Delaware against all expenses,
liability and loss (including without limitation attorney's fees, judgments,
fines and amounts paid in settlement) reasonably incurred by such person in
connection therewith. The rights conferred by Article 6(d) are contractual
rights and include the right to be paid by the Company the expenses incurred in
defending such action, suit or proceeding in advance of the final disposition
thereof.
Article 6(c) of the Company's Certificate of Incorporation provides that
the Company's directors will not be personally liable to the Company or its
stockholders for monetary damages resulting from breaches of
II-1
24
their fiduciary duty as directors except (i) for any breach of the duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of Delaware, which
makes directors liable for unlawful dividends or unlawful stock repurchases or
redemptions or (iv) for transactions from which directors derive an improper
personal benefit.
The Company has purchased directors' and officers' liability insurance
policies which insure against certain liabilities incurred by directors and
officers of the Company, with aggregate annual coverage of up to $30,000,000.
ItemCompany.
ITEM 16. List of Exhibits and Exhibit Index
Exhibit 1.1- Form of Underwriting Agreement relating to Debt Securities.
Exhibit 1.2- Form of Underwriting Agreement relating to Common Stock and
Preferred Stock.
Exhibit 1.3EXHIBITS.
1.1 Form of Underwriting Agreement relating to Debt Securities.
1.2 Form of Underwriting Agreement relating to Common Stock, Preferred
Stock and/or Warrants.
4.1 Form of Senior Debt Indenture filed as an exhibit to the Company's
Registration Statement No. 333-14977 on Form S-3, is incorporated
herein by reference.
4.2 Form of Senior Subordinated Debt Indenture filed as an exhibit to the
Company's Registration Statement No. 333-14977 on Form S-3, is
incorporated herein by reference.
4.3 Form of Subordinated Debt Indenture filed as an exhibit to the
Company's Registration Statement No. 333-14977 on Form S-3, is
incorporated herein by reference.
4.4 Form of certificate for Common Stock filed as an exhibit to the
Company's Registration Statement No. 333-14977 on Form S-3, is
incorporated herein by reference.
4.5* Form of Certificate of Designation of Preferred Stock.
4.6* Form of certificate for Preferred Stock.
4.7 Rights Agreement between the Company and ChaseMellon Shareholder
Services, L.L.C. (assignee of Bank of America National Trust and
Savings Association, successor-by-merger to Security Pacific National
Bank), as Rights Agent, dated February 21, 1989, filed as an exhibit
to the Company's 1989 Annual Report on Form 10-K, is incorporated by
reference herein.
4.8* Form of Warrant Agreement.
5.1 Opinion of Munger, Tolles & Olson LLP as to the legality of
Securities to be issued.
12 Statement re: Computation of Consolidated Ratio of Earnings to Fixed
Charges of the Company and of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Munger, Tolles & Olson LLP (included in Exhibit 5.1).
24 Powers of Attorney (included on page II-5).
II-2
25
25* Statement of Eligibility and Qualification of the Trustee under the
Trust Indenture Act (to be filed in accordance with Section 305(b)(2)
of the Trust Indenture Act of 1939).
- Form of Underwriting Agreement relating to Warrants.*
Exhibit 3(i).1- Amended Certificate of Incorporation, filed as an exhibit to
the Company's Registration Statement No. 33-6471 on Form S-1, is
incorporated by reference herein.
Exhibit 3(i).2 - Amendment to Certificate of Incorporation, filed as an
exhibit to the Company's Registration Statement No. 33-6471 on
Form S-1 (Post-Effective Amendment No. 3), is incorporated by
reference herein.
Exhibit 3(i).3- Amendment to Certificate of Incorporation, filed as an exhibit
to the Company's Registration Statement No. 33-30140 on Form S-1,
is incorporated by reference herein.
Exhibit 3(ii)- By-Laws, filed as an exhibit to the Company's Registration
Statement No. 33-30140 on Form S-1, is incorporated by reference
herein.
Exhibit 4.1- Form of Senior Debt Indenture.
Exhibit 4.2- Form of Senior Subordinated Debt Indenture.
Exhibit 4.3- Form of Subordinated Debt Indenture.
Exhibit 4.4- Form of Floating Rate Note.*
Exhibit 4.5- Form of Fixed Rate Note.*
Exhibit 4.6- Form of certificate for Common Stock.
Exhibit 4.7- Certificate of Designation of Preferred Stock.*
Exhibit 4.8- Form of certificate for Preferred Stock.*
Exhibit 4.9- Rights Agreement between the Company and ChaseMellon Shareholder
Services, L.L.C. (assignee of Bank of America National Trust and
Savings Association, successor-by-merger to Security Pacific
National Bank), as Rights Agent, dated February 21, 1989, filed
as an exhibit to the Company's 1989 Annual Report on Form 10-K,
is incorporated by reference herein.
Exhibit 4.10- Form of Warrant Agreement pertaining to Debt Securities
(including the form of certificate representing a Warrant for
Debt Securities).*
Exhibit 4.11- Form of Warrant Agreement pertaining to Preferred Stock
(including the form of Certificate representing a Warrant for
Preferred Stock).*
Exhibit 4.12- Form of Warrant Agreement pertaining to Common Stock (including
the form of certificate representing a Warrant for Common Stock).*
Exhibit 5.1- Opinion of Davis Polk & Wardwell as to the legality of Securities
to be issued.
Exhibit 12 - Statement of Computation of Consolidated Ratio of Earnings to
Fixed Charges of the Company and of Earnings to
Combined Fixed Charges and Preferred Stock Dividends.
Exhibit 23.1- Consent of Ernst & Young LLP.
Exhibit 23.2- Consent of Davis Polk & Wardwell (included in Exhibit 5.1).
Exhibit 24 - Powers of Attorney (included on page II-4).
Exhibit 25 - Statement of Eligibility and Qualification of the Trustee under
the Trust Indenture Act (to be filed in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939).*
________________----------------
* To be filed by a post-effective amendment to the Registration Statement
or incorporated by reference in the event of an offering of the specified
Securities.
ItemITEM 17. Undertakings.UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement;
(i)i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in this registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, 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.
The undersigned registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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
registrants pursuant to the provisions set forth or described in Item 15 of this
Registration Statement, or otherwise, the registrant has been advised that in
the opinion of the
II-3
26
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrants 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 registered hereby, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-4
27
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 Los Angeles, California, on the 29th4th day of October, 1996.December, 1997.
KAUFMAN AND BROAD HOME CORPORATION
ByBy: /s/ MICHAEL F. HENN
------------------------------
Michael F. Henn
Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MENPERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael F. Henn, Albert Z. PrawBarton P. Pachino and
Kimberly N. King, and each of them, his or her true and lawful attorney-in-
factattorney-in-fact
and agent, with full power of substitution, for him or her and in his or her
name, and in any and all capacities, to sign all amendments (including
post-
effectivepost-effective amendments) to the Registration Statement to which this power of
attorney is attached and all subsequently filed registration statements,
including any amendments thereto, for the same offering that are to be effective
upon filing pursuant to Rule 462(b) under the Securities Act of 1933, and to
file all such amendments, registration statements and all exhibits to them and
other documents to be filed in connection with them, with the Securities and
Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities as Directors and Officers of Kaufman and Broad Home Corporation
and on the datedates indicated.
Signature Title Date
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ BRUCE KARATZ Chairman President and Chief October 29, 1996December 4, 1997
- -------------------------------- Executive Officer
Bruce Karatz Executive Officer
/s/ MICHAEL F. HENN Senior Vice President and Chief October 29, 1996December 4, 1997
- -------------------------------- Financial Officer
Michael F. Henn Financial Officer
/s/ RONALD W. BURKLE Director October 29, 1996December 4, 1997
- ----------------------------------------------------
Ronald W. Burkle
/s/ JANE EVANS Director October 29, 1996December 4, 1997
- ---------------------------------------------
Jane Evans
/s/ DR. RAY R. IRANI Director October 29, 1996December 4, 1997
- ---------------------------------------------------
Dr. Ray R. Irani
/s/ ANTOINE JEANCOURT-GALIGNANI Director October 29, 1996December 4, 1997
- -------------------------------
Antoine Jeancourt-Galignani
Director December 4, 1997
/s/ JAMES A. JOHNSON
Director October 29, 1996
- ---------------------------------------------------
James A. Johnson
II-5
28
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ GUY NAFILYAN Director; Executive Vice October 29, 1996Director December 4, 1997
- ---------------- President, European Operations------------------------
Guy Nafilyan
/s/ LUIS G. NOGALES Director October 29, 1996December 4, 1997
- -------------------------------------------
Luis G. Nogales
/s/ CHARLES R. RINEHART Director October 29, 1996December 4, 1997
- -----------------------------------------------
Charles R. Rinehart
/s/ SANFORD C. SIGOLOFF Director October 29, 1996December 4, 1997
- -----------------------------------------------
Sanford C. Sigoloff
File No: 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
--------------
EXHIBITS
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------
Kaufman and Broad Home Corporation
(Exact name of Registrant as specified in its charter)
==============================================================================
LIST OF EXHIBITS
Description
Exhibit 1.1- Form of Underwriting Agreement relating to Debt Securities.
Exhibit 1.2- Form of Underwriting Agreement relating to the Common Stock and
Preferred Stock.
Exhibit 1.3 - Form of Underwriting Agreement relating to Warrants.*
Exhibit 3(i).1- Amended Certificate of Incorporation, filed as an exhibit to
the Company's Registration Statement No. 33-6471 on Form S-1, is
incorporated by reference herein.
Exhibit 3(i).2 - Amendment to Certificate of Incorporation, filed as an
exhibit to the Company's Registration Statement No. 33-6471 on
Form S-1 (Post-Effective Amendment No. 3), is incorporated by
reference herein.
Exhibit 3(i).3- Amendment to Certificate of Incorporation, filed as an exhibit
to the Company's Registration Statement No. 33-30140 on Form S-1,
is incorporated by reference herein.
Exhibit 3(ii)- By-Laws, filed as an exhibit to the Company's Registration
Statement No. 33-30140 on Form S-1, is incorporated by reference
herein.
Exhibit 4.1- Form of Senior Debt Indenture.
Exhibit 4.2- Form of Senior Subordinated Debt Indenture.
Exhibit 4.3- Form of Subordinated Debt Indenture.
Exhibit 4.4- Form of Floating Rate Note.*
Exhibit 4.5- Form of Fixed Rate Note.*
Exhibit 4.6- Form of certificate for Common Stock.
Exhibit 4.7- Certificate of Designation of Preferred Stock.*
Exhibit 4.8- Form of certificate for Preferred Stock.*
Exhibit 4.9- Rights Agreement between the Company and ChaseMellon Shareholder
Services, L.L.C. (assignee of Bank of America National Trust and
Savings Association, successor-by-merger to Security Pacific
National Bank), as Rights Agent, dated February 21, 1989, filed
as an exhibit to the Company's 1989 Annual Report on Form 10-K,
is incorporated by reference herein.
Exhibit 4.10- Form of Warrant Agreement pertaining to Debt Securities
(including the form of certificate representing a Warrant for
Debt Securities).*
Exhibit 4.11- Form of Warrant Agreement pertaining to Preferred Stock
(including the form of Certificate representing a Warrant for
Preferred Stock).*
Exhibit 4.12- Form of Warrant Agreement pertaining to Common Stock (including
the form of certificate representing a Warrant for Common Stock).*
Exhibit 5.1- Opinion of Davis Polk & Wardwell as to the legality of Securities
to be issued.
Exhibit 12 - Statement of Computation of Consolidated Ratio of Earnings to
Fixed Charges of the Company and of Earnings to Combined Fixed
Charges and Preferred Stock Dividends.
Exhibit 23.1- Consent of Ernst & Young LLP.
Exhibit 23.2- Consent of Davis Polk & Wardwell (included in Exhibit 5.1).
Exhibit 24 - Powers of Attorney (included on page II-4).
Exhibit 25 - Statement of Eligibility and Qualification of the Trustee under
the Trust Indenture Act
(to be filed in accordance with Section 305(b)(2) of the Trust
Indenture Act of 1939).*
- ----------------
* To be filed by a post-effective amendment to the Registration Statement or
incorporated by reference in the event of an offering of the specified
Securities.