AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 16, 2002
REGISTRATION STATEMENT NO. 333-75714
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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GROUP 1 AUTOMOTIVE, INC.
(and certain subsidiaries identified on the Table of Additional Registrants)
(Exact name of registrant as specified in its charter)
<Table>
DELAWARE 76-0506313
(State or jurisdiction of incorporation or
organization) (I.R.S. Employer Identification No.)
B.B. HOLLINGSWORTH, JR.
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE
OFFICER
GROUP 1 AUTOMOTIVE, INC.
950 ECHO LANE, SUITE 100 950 ECHO LANE, SUITE 100
HOUSTON, TEXAS 77024 HOUSTON, TEXAS 77024
(713) 647-5700 (713) 647-5700
(Address, including zip code, and telephone
number, including (Name, address, including zip code, and
area code, of registrants' principal telephone number,
executive offices) including area code, of agent for service)
</Table>
Copy to:
JOHN S. WATSON
VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER, 1001 FANNIN
HOUSTON, TEXAS 77002-6760
(713) 758-2222
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective. If the only
securities being registered on this Form are being offered pursuant to dividend
or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, 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 of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, 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. [ ]
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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TABLE OF ADDITIONAL REGISTRANTS
UNDER REGISTRATION STATEMENT ON FORM S-3
The following subsidiaries of Group 1 Automotive, Inc. are co-registrants
under this registration statement for the purpose of providing guarantees, if
any, of payments on debt securities registered hereunder:
<Table>
<Caption>
SUBSIDIARY STATE OF ORGANIZATION IRS EMPLOYER ID NO.
- ---------- --------------------- -------------------
Amarillo Motors-C, Ltd. Texas (limited partnership) 75-2804523
Amarillo Motors-F, Ltd. Texas (limited partnership) 75-2804528
Amarillo Motors-FM, Ltd. Texas (limited partnership) 76-0653028
Amarillo Motors-J, Ltd. Texas (limited partnership) 75-2804517
Amarillo Motors-SM, Ltd. Texas (limited partnership) 75-2859294
Bob Howard Automotive-East, Inc. Oklahoma 73-1511394
Bob Howard Automotive-H, Inc. Oklahoma 73-1443717
Bob Howard Chevrolet, Inc. Oklahoma 73-1329605
Bob Howard Dodge, Inc. Oklahoma 73-1494123
Bob Howard German Imports, Inc. Oklahoma 73-1561047
Bob Howard Motors, Inc. Oklahoma 73-1370828
Bob Howard Nissan, Inc. Oklahoma 73-1524179
Bohn-FII, LLC Delaware 30-0015852
Bohn Holdings-F, Inc. Delaware 26-0010831
Bohn Holdings-GM, Inc. Delaware 26-0010865
Casa Chevrolet Inc. New Mexico 85-0450426
Casa Chrysler Plymouth Jeep Inc. New Mexico 85-0450428
Casa Mitsubishi, Inc. New Mexico 76-0676877
Chaperral Dodge, Ltd. Texas (limited partnership) 75-2807212
Colonial Chrysler-Plymouth, Ltd. Texas (limited partnership) 75-2807213
Courtesy Ford, Inc. Florida 76-0558145
Courtesy Nissan, Inc. Texas 75-1905979
Danvers-DC, Inc. Delaware 74-2938754
Danvers-DCII, Inc. Delaware 74-2938564
Danvers-DCIII, Inc. Delaware 76-0632150
Danvers-GM, Inc. Delaware 74-2938755
Danvers-S, Inc. Delaware 74-2938756
Danvers-SU, Inc. Delaware 74-2938757
Danvers-T, Inc. Delaware 74-2931798
Danvers-TL, Inc. Delaware 74-2938758
Delaware Acquisition-DC, L.L.C. Delaware Applied for
Delaware Acquisition-F, L.L.C. Delaware Applied for
Delaware Acquisition-GM, L.L.C. Delaware 51-0390053
Delaware Acquisition-T, L.L.C. Delaware Applied for
Flamingo Ford, Inc. Florida 59-3501408
Foyt Motors, Inc. Texas 76-0237540
GPI Acquisition-I, Inc. Texas Applied for
GPI, Ltd. Texas (limited partnership) 76-0625642
GPI Atlanta-F, Inc. Georgia 58-1092802
GPI Atlanta-FLM, Inc. Delaware 76-0646122
GPI Atlanta-FLM II, Inc. Delaware 74-3016997
GPI Atlanta-T, Inc. Delaware 76-0646121
Group 1 Associates, Inc. Delaware 51-0390227
Group 1 DCP, Inc. Delaware 76-0626797
Group 1 Holdings-DC, L.L.C. Delaware 52-2203214
Group 1 Holdings-F, L.L.C. Delaware 52-2203228
Group 1 Holdings-GM, L.L.C. Delaware 52-2203229
Group 1 Holdings-H, L.L.C. Delaware 52-2203230
Group 1 Holdings-N, L.L.C. Delaware 52-2203232
Group 1 Holdings-S, L.L.C. Delaware 52-2203234
Group 1 Holdings-T, L.L.C. Delaware 52-2203236
Group 1 LP Interests-DC, Inc. Delaware 51-0379880
Group 1 LP Interests-F, Inc. Delaware 51-0382407
</Table>
TABLE OF ADDITIONAL REGISTRANTS
UNDER REGISTRATION STATEMENT ON FORM S-3
<Table>
<Caption>
SUBSIDIARY STATE OF ORGANIZATION IRS EMPLOYER ID NO.
- ---------- --------------------- -------------------
Group 1 LP Interests-GM, Inc. Delaware 51-0390228
Group 1 LP Interests-H, Inc. Delaware 51-0393132
Group 1 LP Interests-N, Inc. Delaware 51-0390229
Group 1 LP Interests-S, Inc. Delaware 51-0393131
Group 1 LP Interests-T, Inc. Delaware 51-0390230
Group 1 Realty, Inc. Delaware 76-0632149
Harvey Ford, LLC Delaware 52-2200134
Harvey GM, LLC Delaware 74-2931595
Harvey Holdings, Inc. Delaware 74-2930808
Harvey Operations-T, LLC Delaware 52-2203237
Harvey-T, Inc. Delaware 74-2930807
Highland Autoplex, Inc. Texas 74-2873513
Howard Pontiac-GMC, Inc. Oklahoma 73-1022200
Howard-DC, Inc. Delaware 73-1577852
Howard-GM, Inc. Delaware 73-1577853
Howard-GM II, Inc. Delaware 73-1613234
Howard-H, Inc. Delaware 73-1577855
Howard-HA, Inc. Delaware 73-1577856
Howard-SI, Inc. Delaware 73-1577854
Ira Automotive Group, LLC Delaware 74-2940277
Jim Tidwell Ford, Inc. Delaware 58-2436391
Johns Automotive Group, Inc. New Mexico 76-0603184
Key Ford, Inc. Florida 59-1168670
Koons Ford, Inc. Florida 59-1914202
Kutz-DC, Ltd. Texas (limited partnership) 75-2763925
Lubbock Motors, Ltd. Texas (limited partnership) 75-2822208
Lubbock Motors-F, Ltd. Texas (limited partnership) 75-2804514
Lubbock Motors-S, Ltd. Texas (limited partnership) 75-2868766
Lubbock Motors-SH, Ltd. Texas (limited partnership) 75-2859295
Lubbock Motors-T, Ltd. Texas (limited partnership) 75-2804659
Luby Chevrolet Co. Delaware 84-0459450
Maxwell Chrysler Plymouth Dodge Jeep Eagle,
Ltd. Texas (limited partnership) 74-2690982
Maxwell-FII, Ltd. Texas (limited partnership) 74-2861544
Maxwell Ford, Ltd. Texas (limited partnership) 74-2884783
Maxwell-SM, Ltd. Texas (limited partnership) 74-2551405
McCall-H, Inc. Texas 76-0627255
McCall-HA, Ltd. Texas (limited partnership) 76-0173063
McCall-SI, Inc. Texas 76-0627253
McCall-T, Ltd. Texas (limited partnership) 74-1649754
McCall-TII, Ltd. Texas (limited partnership) 76-0654109
McCall-TL, Ltd. Texas (limited partnership) 76-0270456
Mike Smith Automotive-H, Inc. Delaware 76-0603178
Mike Smith Automotive-N, Inc. Texas 76-0566784
Mike Smith Autoplaza, Inc. Texas 76-0202396
Mike Smith Autoplex Buick, Inc. Texas 76-0566787
Mike Smith Autoplex Dodge, Inc. Texas 76-0566783
Mike Smith Autoplex, Inc. Texas 76-0561393
Mike Smith Autoplex-German Imports, Inc. Texas 76-0566786
Mike Smith Autoplex-V, Inc. Texas 76-0566788
Mike Smith Imports, Inc. Texas 76-0586800
Mike Smith Motors, Inc. Texas 76-0586392
Mike Smith GM, Inc. Delaware 76-0603181
Perimeter Ford, Inc. Delaware 76-0558147
Prestige Chrysler Plymouth Northwest, Ltd. Texas (limited partnership) 74-2679593
Prestige Chrysler Plymouth South, Ltd. Texas (limited partnership) 74-2690980
Rockwall Automotive-DCD, Ltd. Texas (limited partnership) 76-0659030
Rockwall Automotive-F, Ltd. Texas (limited partnership) 75-2804507
</Table>
TABLE OF ADDITIONAL REGISTRANTS
UNDER REGISTRATION STATEMENT ON FORM S-3
<Table>
<Caption>
SUBSIDIARY STATE OF ORGANIZATION IRS EMPLOYER ID NO.
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Round Rock Nissan, Inc. Texas 76-0513858
Shamrock Chevrolet, Inc. Florida 59-2894916
SMC Investment, Inc. Texas 74-2025950
Smith, Liu & Kutz, Inc. Texas 76-0140051
Sunshine Buick Pontiac GMC Truck, Inc. New Mexico 85-0457224
Town North Nissan, Inc. Texas 74-2360462
Town North Suzuki, Inc. Texas 74-2443143
</Table>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES, AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JANUARY 16, 2002.
PROSPECTUS
Group 1 Automotive, Inc.
950 Echo Lane, Suite 100
Houston, Texas 77024
(713) 647-5700
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
---------------------
Group 1 may offer and sell the securities listed above with an aggregate
offering price up to $278,818,000 in connection with this prospectus. We will
provide specific terms of these offerings and securities in supplements to this
prospectus, including whether the debt securities are guaranteed by all of our
subsidiaries.
The selling stockholder may offer and sell from time to time up to 700,000
shares of our common stock in connection with this prospectus. Unless otherwise
provided in a prospectus supplement, we do not expect to receive any proceeds
from the sale of shares by the selling stockholder.
The common stock is listed on the New York Stock Exchange under the symbol
"GPI". The last reported sale price of the common stock on January 15, 2002 was
$28.97 per share.
---------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
This prospectus is dated January , 2002.
TABLE OF CONTENTS
<Table>
About This Prospectus....................................... 2
Where You Can Find More Information......................... 2
Forward-Looking Statements.................................. 3
Disclaimer.................................................. 4
The Company................................................. 4
Use of Proceeds............................................. 4
Ratios of Earnings to Fixed Charges and Earnings to Fixed
Charges Plus Dividends.................................... 5
Description of Debt Securities.............................. 5
Description of Capital Stock................................ 17
Description of Depositary Shares............................ 21
Description of Warrants..................................... 23
Selling Stockholder......................................... 23
Plan of Distribution........................................ 24
Legal Matters............................................... 26
Experts..................................................... 26
</Table>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC") utilizing a "shelf" registration
process. Under this shelf registration process, we may sell any combination of
the securities described in this prospectus in one or more offerings up to a
total dollar amount of $278,818,000. In addition, the selling stockholder may
sell up to 700,000 shares of our common stock as described elsewhere in this
prospectus. This prospectus provides you with a general description of the
securities we may offer and the common stock that the selling stockholder may
offer. Each time we sell securities, we will provide you with a prospectus
supplement that will contain specific information about the terms of the
offering and the offered securities. The prospectus supplement may also add,
update or change information contained in this prospectus. Any statement that we
make in this prospectus will be modified or superseded by any inconsistent
statement made by us in a prospectus supplement. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information."
In this registration statement, the terms "we," "our," "ours," and "us"
refer to Group 1 Automotive, Inc. and its subsidiaries, unless otherwise
indicated or the context requires otherwise.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549. You may obtain information on the operation of the
SEC's public reference room in Washington, D.C. by calling the SEC at
1-800-SEC-0330. We also file such information with the New York Stock Exchange.
Such reports, proxy statements and other information may be read and copied at
30 Broad Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the
2
documents listed below and any further filings made with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we and
the selling stockholder sell all of the securities or we and the selling
stockholder terminate this offering:
- Our Annual Report on Form 10-K for the year ended December 31, 2000;
- Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001,
June 30, 2001 and September 30, 2001;
- Our Current Report on Form 8-K, filed with the SEC on October 30, 2001;
and
- The description of our common stock contained in our Form 8-A dated
October 7, 1997, including any amendment to that form that we may have
filed in the past, or may file in the future, for the purpose of updating
the description of our common stock.
You may request a copy of these filings at no cost by writing or
telephoning us at the following address:
Group 1 Automotive, Inc.
950 Echo Lane, Suite 100
Houston, Texas 77024
(713) 647-5700
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We and the selling
stockholder have not authorized anyone else to provide you with different
information. We and the selling stockholder are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of those documents.
FORWARD-LOOKING STATEMENTS
This prospectus includes certain "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. These statements include statements regarding
our plans, goals, beliefs or current expectations, including those plans, goals,
beliefs and expectations of our officers and directors with respect to, among
other things:
- the completion of pending and future acquisitions
- operating cash flows and availability of capital
- capital expenditures
Any such forward-looking statements are not assurances of future
performance and involve risks and uncertainties. Actual results may differ
materially from anticipated results in the forward-looking statements for a
number of reasons, including:
- the economic environment, including consumer confidence and interest
rates, may affect the demand for new and used vehicles and parts and
service sales
- regulatory environment, adverse legislation, or unexpected litigation
- our principal automobile manufacturers, especially Ford and Toyota, may
not continue to produce or make available to us vehicles that are in high
demand by our customers
- requirements imposed on us by our manufacturers may affect our
acquisitions and capital expenditures related to our dealership
facilities
- our dealership operations may not perform at expected levels or achieve
expected improvements
3
- we may not achieve expected future cost savings and our future costs
could be higher than we expected
- available capital resources may limit our ability to complete
acquisitions
- available capital resources may limit our ability to complete
construction of new or expanded facilities
- changes in interest rates
The information contained in our Annual Report on Form 10-K for the year
ended December 31, 2000 identifies factors that could affect our operating
results and performance. We urge you to carefully consider those factors.
All forward-looking statements attributable to us are qualified in their
entirety by this cautionary statement.
DISCLAIMER
None of our automobile manufacturers has been involved, directly or
indirectly, in the preparation of this prospectus or in any offering made
hereby. No manufacturer has made any statements or representations in connection
with the offering or has provided any information or materials that were used in
connection with the offering, and no manufacturer has any responsibility for the
accuracy or completeness of this prospectus.
THE COMPANY
We are a leading operator in the $1 trillion automotive retailing industry.
We operate 61 dealerships comprised of 96 franchises, 29 different brands, and
23 collision service centers located in Texas, Oklahoma, Florida, New Mexico,
Colorado, Georgia, Louisiana and Massachusetts. We sell new and used cars and
light trucks, provide maintenance and repair services, sell replacement parts
and arrange related financing, vehicle service and insurance contracts.
Our corporate headquarters is located in Houston, Texas at 950 Echo Lane,
Suite 100, Houston, Texas 77024 (telephone: (713) 647-5700).
USE OF PROCEEDS
Unless otherwise provided in a prospectus supplement, we will use the net
proceeds from the sale of the securities offered by us pursuant to this
prospectus and any prospectus supplement for our general corporate purposes,
which may include repayment of indebtedness, additions to our working capital,
capital expenditures and potential future acquisitions.
Unless otherwise provided in a prospectus supplement, we do not expect to
receive any proceeds from the sale of our common stock by the selling
stockholder.
4
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES PLUS DIVIDENDS
The following table contains our consolidated ratios of earnings to fixed
charges and earnings to fixed charges plus dividends for the periods indicated.
<Table>
<Caption>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, -------------------------
2001 2000 1999 1998 1997
------------- ---- ---- ---- ----
Ratio of earnings to fixed charges.................... 2.38 1.98 2.36 2.60 2.16
---- ---- ---- ---- ----
Ratio of earnings to fixed charges plus dividends..... 2.38 1.98 2.36 2.60 2.16
---- ---- ---- ---- ----
</Table>
For purposes of computing the ratios of earnings to fixed charges and
earnings to fixed charges plus dividends:
(1) "earnings" consist of income before provision for income taxes
plus fixed charges (excluding capitalized interest) and
(2) "fixed charges" consist of interest expensed and capitalized,
amortization of debt discount and expense relating to indebtedness and the
portion of rental expense representative of the interest factor
attributable to leases for rental property.
There were no dividends paid or accrued during the periods presented above.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be either our senior debt securities ("Senior Debt
Securities") or our subordinated debt securities ("Subordinated Debt
Securities"). The Senior Debt Securities and the Subordinated Debt Securities
will be issued under separate Indentures among us, our domestic subsidiaries, if
our domestic subsidiaries are guarantors of the Debt Securities, and a U.S.
banking institution (a "Trustee"). Senior Debt Securities will be issued under a
"Senior Indenture" and Subordinated Debt Securities will be issued under a
"Subordinated Indenture." Together the Senior Indenture and the Subordinated
Indenture are called "Indentures."
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series that are offered by a prospectus supplement
will be described in the prospectus supplement.
We primarily conduct our operations through our subsidiaries. Unless the
Debt Securities are guaranteed by our subsidiaries as described below, the
rights of Group 1 and Group 1's creditors, including holders of the Debt
Securities, to participate in the assets of any subsidiary upon the subsidiary's
liquidation or reorganization will be subject to the prior claims of the
subsidiary's creditors, except to the extent that we may be a creditor with
recognized claims against such subsidiary.
We have summarized selected provisions of the Indentures below. The summary
is not complete. The form of each Indenture has been filed with the SEC with
this registration statement and you should read the Indenture for provisions
that may be important to you. In the summary below we have included references
to section numbers of the applicable Indentures so that you can easily locate
these provisions. Whenever we refer in this prospectus or in the prospectus
supplement to particular sections or defined terms of the Indenture, such
sections or defined terms are incorporated by reference herein or therein, as
applicable. Capitalized terms used in the summary have the meanings specified in
the Indentures.
GENERAL
The Indentures provide that Debt Securities in separate series may be
issued thereunder from time to time without limitation as to aggregate principal
amount. We may specify a maximum aggregate principal amount for the Debt
Securities of any series. (Section 301) We will determine the terms and
conditions of the Debt Securities, including the maturity, principal and
interest, but those terms must be consistent with the Indenture. The Debt
Securities will be our unsecured obligations.
5
The Subordinated Debt Securities will be subordinated in right of payment
to the prior payment in full of all of our Senior Debt (as defined) as described
under "-- Subordination of Subordinated Debt Securities" and in the prospectus
supplement applicable to any Subordinated Debt Securities. If the prospectus
supplement so indicates, the Subordinated Debt Securities will be convertible
into our common stock as described under "-- Conversion of Subordinated Debt
Securities."
If specified in the prospectus supplement, our domestic subsidiaries (the
"Subsidiary Guarantors") will unconditionally guarantee (the "Subsidiary
Guarantees") on a joint and several basis the Debt Securities as described under
"-- Subsidiary Guarantees" and in the prospectus supplement. The Subsidiary
Guarantees will be unsecured obligations of each Subsidiary Guarantor.
Subsidiary Guarantees of Subordinated Debt Securities will be subordinated to
the Senior Debt of the Subsidiary Guarantors on the same basis as the
Subordinated Debt Securities are subordinated to our Senior Debt.
The applicable prospectus supplement will set forth the price or prices at
which the Debt Securities to be offered will be issued and will describe the
following terms of such Debt Securities:
(1) the title of the Debt Securities;
(2) whether the Debt Securities are Senior Debt Securities or
Subordinated Debt Securities and, if Subordinated Debt Securities, the
related subordination terms;
(3) whether the Subsidiary Guarantors will provide Subsidiary
Guarantees of the Debt Securities;
(4) any limit on the aggregate principal amount of the Debt
Securities;
(5) the dates on which the principal of the Debt Securities will be
payable;
(6) the interest rate which the Debt Securities will bear and the
interest payment dates for the Debt Securities;
(7) the places where payments on the Debt Securities will be payable;
(8) any terms upon which the Debt Securities may be redeemed, in whole
or in part, at our option;
(9) any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the Debt Securities;
(10) the portion of the principal amount, if less than all, of the
Debt Securities that will be payable upon declaration of acceleration of
the Maturity of the Debt Securities;
(11) whether the Debt Securities are defeasible;
(12) any addition to or change in the Events of Default;
(13) whether the Debt Securities are convertible into our common stock
and, if so, the terms and conditions upon which conversion will be
effected, including the initial conversion price or conversion rate ("the
Conversion Price") and any adjustments thereto in addition to or different
from those described in this prospectus, the conversion period and other
conversion provisions in addition to or in lieu of those described in this
prospectus;
(14) any addition to or change in the covenants in the Indenture
applicable to any of the Debt Securities; and
(15) any other terms of the Debt Securities not inconsistent with the
provisions of the Indenture. (Section 301)
Debt Securities, including Original Issue Discount Securities, may be sold
at a substantial discount below their principal amount. Special United States
federal income tax considerations applicable to Debt Securities sold at an
original issue discount may be described in the applicable prospectus
supplement. In addition, special United States federal income tax or other
considerations applicable to any Debt Securities
6
that are denominated in a currency or currency unit other than United States
dollars may be described in the applicable prospectus supplement.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The indebtedness evidenced by the Subordinated Debt Securities will, to the
extent set forth in the Subordinated Indenture with respect to each series of
Subordinated Debt Securities, be subordinate in right of payment to the prior
payment in full of all of our Senior Debt, including the Senior Debt Securities,
and it may also be senior in right of payment to all of our Subordinated Debt.
The prospectus supplement relating to any Subordinated Debt Securities will
summarize the subordination provisions of the Subordinated Indenture applicable
to that series including:
- the applicability and effect of such provisions upon any payment or
distribution of our assets to creditors upon any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors or marshaling of assets or any bankruptcy, insolvency or
similar proceedings;
- the applicability and effect of such provisions in the event of specified
defaults with respect to any Senior Debt, including the circumstances
under which and the periods in which we will be prohibited from making
payments on the Subordinated Debt Securities; and
- the definition of Senior Debt applicable to the Subordinated Debt
Securities of that series and, if the series is issued on a senior
subordinated basis, the definition of Subordinated Debt applicable to
that series.
The prospectus supplement will also describe as of a recent date the approximate
amount of Senior Debt to which the Subordinated Debt Securities of that series
will be subordinated.
The failure to make any payment on any of the Subordinated Debt Securities
by reason of the subordination provisions of the Subordinated Indenture
described in the prospectus supplement will not be construed as preventing the
occurrence of an Event of Default with respect to the Subordinated Debt
Securities arising from any such failure to make payment.
The subordination provisions described above will not be applicable to
payments in respect of the Subordinated Debt Securities from a defeasance trust
established in connection with any defeasance or covenant defeasance of the
Subordinated Debt Securities as described under "-- Defeasance and Covenant
Defeasance."
CONVERSION OF DEBT SECURITIES
The Indentures may provide for a right of conversion of Debt Securities
into our common stock (or cash in lieu thereof). (Sections 301 and 1701) The
following provisions will apply to Debt Securities that are convertible unless
otherwise provided in the prospectus supplement for such Debt Securities.
The Holder of any convertible Debt Securities will have the right,
exercisable at any time prior to the close of business on the second Business
Day prior to their Stated Maturity, unless previously redeemed or otherwise
purchased by us, to convert such Debt Securities into shares of common stock at
the Conversion Price set forth in the prospectus supplement, subject to
adjustment. (Section 1702) The Holder of convertible Debt Securities may convert
any portion thereof which is $1,000 in principal amount or any multiple thereof.
(Section 1702)
In certain events, the Conversion Price will be subject to adjustment as
set forth in the Indenture. Such events include:
(a) any payment of a dividend (or other distribution) payable in
common stock on any class of our Capital Stock;
(b) any subdivision, combination or reclassification of common stock;
7
(c) any issuance to all holders of common stock of rights, options or
warrants entitling them to subscribe for or purchase common stock at less
than the then current market price (as determined in accordance with the
Indenture) of common stock; provided, however, that if such rights, options
or warrants are only exercisable upon the occurrence of certain triggering
events relating to control and provided for in shareholders' rights plans,
then the Conversion Price will not be adjusted until such triggering events
occur;
(d) any distribution to all holders of common stock of evidences of
indebtedness, shares of our Capital Stock other than common stock, cash or
other assets (including securities, but excluding those dividends and
distributions referred to above for which an adjustment must be made and
excluding regular dividends and distributions paid exclusively in cash);
(e) any distribution consisting exclusively of cash (excluding any
cash portion of distributions referred to in (d) above, or cash distributed
upon a merger or consolidation to which the third succeeding paragraph
applies) to all holders of common stock in an aggregate amount that,
combined together with (1) all other such all-cash distributions made
within the then preceding 12 months in respect of which no adjustment has
been made and (2) any cash and the fair market value of other consideration
paid or payable in respect of any tender offer by us or any of our
Subsidiaries for common stock concluded within the preceding 12 months in
respect of which no adjustment has been made, exceeds 15% of our company's
market capitalization (defined as being the product of the then current
market price of the common stock times the number of shares of common stock
then outstanding) on the record date of such distribution; and
(f) the completion of a tender or exchange offer made by us or any of
our Subsidiaries for common stock that involves an aggregate consideration
that, together with (1) any cash and the fair market value of other
consideration payable in a tender or exchange offer by us or any of our
Subsidiaries for common stock expiring within the 12 months preceding the
expiration of such tender or exchange offer in respect of which no
adjustment has been made and (2) the aggregate amount of any such all-cash
distributions referred to in (e) above to all holders of common stock
within the 12 months preceding the expiration of such tender or exchange
offer in respect of which no adjustments have been made, exceeds 15% of our
market capitalization on the expiration of such tender offer.
No adjustment of the Conversion Price will be required to be made until the
cumulative adjustments amount to 1.0% or more of the Conversion Price as last
adjusted. We reserve the right to make such reductions in the Conversion Price
in addition to those required in the preceding provisions as we consider to be
advisable in order that any event treated for federal income tax purposes as a
dividend of a stock or stock rights will not be taxable to the recipients.
Should we elect to make such a reduction in the Conversion Price, we will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder if and to the extent that such laws
and regulations are applicable in connection with the reduction of the
Conversion Price. (Section 1704)
If we distribute rights or warrants (other than those referred to in (c) in
the preceding paragraph) pro rata to holders of common stock, so long as any
such rights or warrants have not expired or been redeemed by us, the Holder of
any convertible Debt Security surrendered for conversion will be entitled to
receive upon such conversion, in addition to the shares of common stock issuable
upon such conversion (the "Conversion Shares"), a number of rights or warrants
to be determined as follows:
(1) if such conversion occurs on or prior to the date for the
distribution to the holders of rights or warrants of separate certificates
evidencing such rights or warrants (the "Distribution Date"), the same
number of rights or warrants to which a holder of a number of shares of
common stock equal to the number of Conversion Shares is entitled at the
time of such conversion in accordance with the terms and provisions of and
applicable to the rights or warrants, and
(2) if such conversion occurs after such Distribution Date, the number
of rights or warrants to which a holder of the number of shares of common
stock into which such Subordinated Debt
8
Security was convertible immediately prior to such Distribution Date would
have been entitled on such Distribution Date in accordance with the terms
and provisions of and applicable to the rights or warrants.
The Conversion Price will not be subject to adjustment on account of any
declaration, distribution or exercise of such rights or warrants. (Section 1704)
Fractional shares of common stock will not be issued upon conversion, but,
instead, we will pay a cash adjustment based on the then current market price
for the common stock. (Section 1703) Upon conversion, no adjustments will be
made for accrued interest or dividends, and therefore convertible Debt
Securities surrendered for conversion between the record date for an interest
payment and the Interest Payment Date (except convertible Debt Securities called
for redemption on a redemption date during such period) must be accompanied by
payment of an amount equal to the interest thereon which the Holder is to
receive. (Sections 1702 and 1704)
In the case of any reclassification of the Conversion Shares, consolidation
or merger of our company with or into another Person or any merger of another
Person with or into us (with certain exceptions), or in case of any transfer or
other disposition of all or substantially all of our assets, each convertible
Debt Security then outstanding will, without the consent of any Holder, become
convertible only into the kind and amount of securities, cash and other property
receivable upon such reclassification, consolidation, merger, conveyance,
transfer or lease by a holder of the number of shares of common stock into which
such Debt Security was convertible immediately prior thereto, after giving
effect to any adjustment event, assuming such Holder failed to exercise any
rights of election and received per share the kind and amount received per share
by a plurality of non-electing shares. (Section 1705)
SUBSIDIARY GUARANTEES
If specified in the prospectus supplement, the Subsidiary Guarantors will
guarantee the Debt Securities of a series. Unless otherwise indicated in the
prospectus supplement, the following provisions will apply to the Subsidiary
Guarantees of the Subsidiary Guarantors.
Subject to the limitations described below and in the prospectus
supplement, the Subsidiary Guarantors will, jointly and severally,
unconditionally guarantee the punctual payment when due, whether at Stated
Maturity, by acceleration or otherwise, of all our obligations under the
Indentures and the Debt Securities of a series, whether for principal of,
premium, if any, or interest on the Debt Securities or otherwise (all such
obligations guaranteed by a Subsidiary Guarantor being herein called the
"Guaranteed Obligations"). The Subsidiary Guarantors will also pay all expenses
(including reasonable counsel fees and expenses) incurred by the applicable
Trustee in enforcing any rights under a Subsidiary Guarantee with respect to a
Subsidiary Guarantor.
In the case of Subordinated Debt Securities, a Subsidiary Guarantor's
Subsidiary Guarantee will be subordinated in right of payment to the Senior Debt
of such Subsidiary Guarantor on the same basis as the Subordinated Debt
Securities are subordinated to our Senior Debt. No payment will be made by any
Subsidiary Guarantor under its Subsidiary Guarantee during any period in which
payments by us on the Subordinated Debt Securities are suspended by the
subordination provisions of the Subordinated Indenture. (Article Fourteen of the
Subordinated Indenture)
Each Subsidiary Guarantee will be limited in amount to an amount not to
exceed the maximum amount that can be guaranteed by the relevant Subsidiary
Guarantor without rendering such Subsidiary Guarantee voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
Each Subsidiary Guarantee will be a continuing guarantee and will:
(1) remain in full force and effect until either (a) payment in full
of all the Guaranteed Obligations (or the applicable Debt Securities are
defeased and discharged in accordance with the defeasance provisions of the
Indentures) or (b) released as described in the following paragraph;
9
(2) be binding upon each Subsidiary Guarantor; and
(3) inure to the benefit of and be enforceable by the applicable
Trustee, the Holders and their successors, transferees and assigns.
In the event that a Subsidiary Guarantor ceases to be a Subsidiary, whether
as a result of a disposition of all or substantially all of the assets or all of
the Capital Stock of such Subsidiary Guarantor, by way of sale, merger,
consolidation or otherwise, such Subsidiary Guarantor will be deemed released
and relieved of its obligations under its Subsidiary Guarantee without any
further action required on the part of the Trustee or any Holder, and no other
person acquiring or owning the assets or Capital Stock of such Subsidiary
Guarantor will be required to enter into a Subsidiary Guarantee; provided, in
each case, that the transaction or transactions resulting in such Subsidiary
Guarantor's ceasing to be a Subsidiary are carried out pursuant to and in
compliance with all of the applicable covenants in the Indenture. In addition,
the prospectus supplement may specify additional circumstances under which a
Subsidiary Guarantor can be released from its Subsidiary Guarantee.
FORM, EXCHANGE AND TRANSFER
The Debt Securities of each series will be issuable only in fully
registered form, without coupons, and, unless otherwise specified in the
applicable prospectus supplement, only in denominations of $1,000 and integral
multiples thereof. (Section 302)
At the option of the Holder, subject to the terms of the applicable
Indenture and the limitations applicable to Global Securities, Debt Securities
of each series will be exchangeable for other Debt Securities of the same series
of any authorized denomination and of a like tenor and aggregate principal
amount. (Section 305)
Subject to the terms of the applicable Indenture and the limitations
applicable to Global Securities, Debt Securities may be presented for exchange
as provided above or for registration of transfer (duly endorsed or with the
form of transfer endorsed thereon duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by us for such
purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but we may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith. Such
transfer or exchange will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. The Security Registrar and any
other transfer agent initially designated by us for any Debt Securities will be
named in the applicable prospectus supplement. (Section 305) We may at any time
designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts,
except that we will be required to maintain a transfer agent in each Place of
Payment for the Debt Securities of each series. (Section 1002)
If the Debt Securities of any series (or of any series and specified terms)
are to be redeemed in part, we will not be required to (i) issue, register the
transfer of or exchange any Debt Security of that series (or of that series and
specified terms, as the case may be) during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of any such
Debt Security that may be selected for redemption and ending at the close of
business on the day of such mailing or (ii) register the transfer of or exchange
any Debt Security so selected for redemption, in whole or in part, except the
unredeemed portion of any such Debt Security being redeemed in part. (Section
305)
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby. Each
Global Security will be registered in the name of a Depositary or its nominee
identified in the applicable prospectus supplement, will be deposited with such
Depositary or nominee or its custodian and will bear a legend regarding the
restrictions on exchanges and registration of transfer
10
thereof referred to below and any such other matters as may be provided for
pursuant to the applicable Indenture.
Notwithstanding any provision of the Indentures or any Debt Security
described in this prospectus, no Global Security may be exchanged in whole or in
part for Debt Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any person other than the
Depositary for such Global Security or any nominee of such Depositary unless:
(1) the Depositary has notified us that it is unwilling or unable to
continue as Depositary for such Global Security or has ceased to be
qualified to act as such as required by the applicable Indenture;
(2) an Event of Default with respect to the Debt Securities
represented by such Global Security has occurred and is continuing and the
Security Registrar has received a written request from the Depositary to
issue certificated Debt Securities; or
(3) other circumstances exist, in addition to or in lieu of those
described above, as may be described in the applicable prospectus
supplement.
All Debt Securities issued in exchange for a Global Security or any portion
thereof will be registered in such names as the Depositary may direct. (Sections
205 and 305)
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities that it represents for all purposes under the Debt Securities and the
applicable Indenture. Except in the limited circumstances referred to above,
owners of beneficial interests in a Global Security will not be entitled to have
such Global Security or any Debt Securities that it represents registered in
their names, will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange therefor and will not be considered to
be the owners or Holders of such Global Security or any Debt Securities that is
represents for any purpose under the Debt Securities or the applicable
Indenture. All payments on a Global Security will be made to the Depositary or
its nominee, as the case may be, as the Holder of the security. The laws of some
jurisdictions require that some purchasers of Debt Securities take physical
delivery of such Debt Securities in definitive form. These laws may impair the
ability to transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary
(with respect to participants' interests) or any such participant (with respect
to interests of persons held by such participants on their behalf). Payments,
transfers, exchanges and other matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of us, the Subsidiary Guarantors, the
Trustees or the agents of ourself, the Subsidiary Guarantors or the Trustees
will have any responsibility or liability for any aspect of the Depositary's or
any participant's records relating to, or for payments made on account of,
beneficial interests in a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307)
11
Unless otherwise indicated in the applicable prospectus supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as we
may designate for such purpose from time to time, except that at our option
payment of any interest may be made by check mailed to the address of the Person
entitled thereto as such address appears in the Security Register. Unless
otherwise indicated in the applicable prospectus supplement, the corporate trust
office of the Trustee under the Senior Indenture in The City of New York will be
designated as sole Paying Agent for payments with respect to Senior Debt
Securities of each series, and the corporate trust office of the Trustee under
the Subordinated Indenture in The City of New York will be designated as the
sole Paying Agent for payment with respect to Subordinated Debt Securities of
each series. Any other Paying Agents initially designated by us for the Debt
Securities of a particular series will be named in the applicable prospectus
supplement. We may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent or approve a change in the office through which
any Paying Agent acts, except that we will be required to maintain a Paying
Agent in each Place of Payment for the Debt Securities of a particular series.
(Section 1002)
All moneys paid by us to a Paying Agent for the payment of the principal of
or any premium or interest on any Debt Security which remain unclaimed at the
end of two years after such principal, premium or interest has become due and
payable will be repaid to us, and the Holder of such Debt Security thereafter
may look only to us for payment thereof. (Section 1003)
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into, or transfer, lease or otherwise
dispose of all or substantially all of our assets to, any Person (a "successor
Person"), and may not permit any Person to consolidate with or merge into us,
unless:
(1) the successor Person (if any) is a corporation, partnership, trust
or other entity organized and validly existing under the laws of any
domestic jurisdiction and assumes our obligations on the Debt Securities
and under the Indentures;
(2) immediately after giving effect to the transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) several other conditions, including any additional conditions with
respect to any particular Debt Securities specified in the applicable
prospectus supplement, are met. (Section 801)
EVENTS OF DEFAULT
Unless otherwise specified in the prospectus supplement, each of the
following will constitute an Event of Default under the applicable Indenture
with respect to Debt Securities of any series:
(1) failure to pay principal of or any premium on any Debt Security of
that series when due, whether or not, in the case of Subordinated Debt
Securities, such payment is prohibited by the subordination provisions of
the Subordinated Indenture;
(2) failure to pay any interest on any Debt Securities of that series
when due, continued for 30 days, whether or not, in the case of
Subordinated Debt Securities, such payment is prohibited by the
subordination provisions of the Subordinated Indenture;
(3) failure to deposit any sinking fund payment, when due, in respect
of any Debt Security of that series, whether or not, in the case of
Subordinated Debt Securities, such deposit is prohibited by the
subordination provisions of the Subordinated Indenture;
(4) failure to perform or comply with the provisions described under
"Consolidation, Merger and Sale of Assets";
12
(5) failure to perform any of our other covenants in such Indenture
(other than a covenant included in such Indenture solely for the benefit of
a series other than that series), continued for 60 days after written
notice has been given by the applicable Trustee, or the Holders of at least
25% in principal amount of the Outstanding Debt Securities of that series,
as provided in such Indenture;
(6) certain events of bankruptcy, insolvency or reorganization
affecting us, any Significant Subsidiary or any group of Subsidiaries that
together would constitute a Significant Subsidiary; and
(7) in the case of Debt Securities guaranteed by any Significant
Subsidiary or any group of Subsidiaries that together would constitute a
Significant Subsidiary, the Subsidiary Guarantee of any such Guarantor or
group of Guarantors is held by a final non-appealable order or judgment of
a court of competent jurisdiction to be unenforceable or invalid or ceases
for any reason to be in full force and effect (other than in accordance
with the terms of the applicable Indenture) or any Significant Subsidiary
or any group of Subsidiaries that together would constitute a Significant
Subsidiary or any Person acting on behalf of Guarantor or group of
Guarantors denies or disaffirms such Guarantor's obligations under its
Subsidiary Guarantee (other than by reason of a release of such Guarantor
from its Subsidiary Guarantee in accordance with the terms of the
applicable Indenture). (Section 501)
If an Event of Default (other than an Event of Default described in clause
(6) above) with respect to the Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the applicable Trustee or the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of that series by notice as provided in the Indenture may declare the principal
amount of the Debt Securities of that series (or, in the case of any Debt
Security that is an Original Issue Discount Debt Security or the principal
amount of which is not then determinable, such portion of the principal amount
of such Debt Security, or such other amount in lieu of such principal amount, as
may be specified in the terms of such Debt Security) to be due and payable
immediately. If an Event of Default described in clause (6) above with respect
to the Debt Securities of any series at the time Outstanding shall occur, the
principal amount of all the Debt Securities of that series (or, in the case of
any such Original Issue Discount Security or other Debt Security, such specified
amount) will automatically, and without any action by the applicable Trustee or
any Holder, become immediately due and payable. After any such acceleration, but
before a judgment or decree based on acceleration, the Holders of a majority in
principal amount of the Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration if all Events of
Default, other than the non-payment of accelerated principal (or other specified
amount), have been cured or waived as provided in the applicable Indenture.
(Section 502) For information as to waiver of defaults, see "-- Modification and
Waiver" below.
Subject to the provisions of the Indentures relating to the duties of the
Trustees in case an Event of Default shall occur and be continuing, each Trustee
will be under no obligation to exercise any of its rights or powers under the
applicable Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to such Trustee reasonable indemnity. (Section
603) Subject to such provisions for the indemnification of the Trustees, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Debt Securities
of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the applicable Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless:
(1) such Holder has previously given to the Trustee under the
applicable Indenture written notice of a continuing Event of Default with
respect to the Debt Securities of that series;
(2) the Holders of at least 25% in principal amount of the Outstanding
Debt Securities of that series have made written request, and such Holder
or Holders have offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee; and
13
(3) the Trustee has failed to institute such proceeding, and has not
received from the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with
such request, within 60 days after such notice, request and offer. (Section
507)
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for the enforcement of payment of the principal of or any premium
or interest on such Debt Security on or after the applicable due date specified
in such Debt Security or, if applicable, to convert such Debt Security. (Section
508)
We will be required to furnish to each Trustee annually a statement by
certain of our officers as to whether or not we, to their knowledge, are in
default in the performance or observance of any of the terms, provisions and
conditions of the applicable Indenture and, if so, specifying all such known
defaults. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of an Indenture may be made by us, the
Subsidiary Guarantors, if applicable, and the applicable Trustee with the
consent of the Holders of a majority in principal amount of the Outstanding Debt
Securities of each series affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security;
(2) reduce the principal amount of, or any premium or interest on, any
Debt Security;
(3) reduce the amount of principal of an Original Issue Discount
Security or any other Debt Security payable upon acceleration of the
Maturity thereof;
(4) change the place or currency of payment of principal of, or any
premium or interest on, any Debt Security;
(5) impair the right to institute suit for the enforcement of any
payment on or any conversion right with respect to any Debt Security;
(6) in the case of Subordinated Debt Securities, modify the
subordination or conversion provisions in a manner adverse to the Holders
of the Subordinated Debt Securities;
(7) modify the conversion provisions in a manner adverse to the
Holders of the Debt Securities;
(8) except as provided in the applicable Indenture, release the
Subsidiary Guarantee of a Subsidiary Guarantor;
(9) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of whose Holders is required for
modification or amendment of the Indenture;
(10) reduce the percentage in principal amount of Outstanding Debt
Securities of any series necessary for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults; or
(11) modify such provisions with respect to modification and waiver.
(Section 902)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may waive compliance by us with certain restrictive
provisions of the applicable Indenture. (Section 1009) The Holders of a majority
in principal amount of the Outstanding Debt Securities of any series may waive
any past default under the applicable Indenture, except a default in the payment
of principal, premium or interest and certain covenants and provisions of the
Indenture which cannot be amended without the consent of the Holder of each
Outstanding Debt Security of such series affected. (Section 513)
14
The Indentures provide that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver or other action under such
Indenture as of any date,
(1) the principal amount of an Original Issue Discount Security that
will be deemed to be Outstanding will be the amount of the principal
thereof that would be due and payable as of such date upon acceleration of
the Maturity thereof to such date;
(2) if, as of such date, the principal amount payable at the Stated
Maturity of a Debt Security is not determinable (for example, because it is
based on an index), the principal amount of such Debt Security deemed to be
Outstanding as of such date will be an amount determined in the manner
prescribed for such Debt Security; and
(3) the principal amount of a Debt Security denominated in one or more
foreign currencies or currency units that will be deemed to be Outstanding
will be the U.S. dollar equivalent, determined as of such date in the
manner prescribed for such Debt Security, of the principal amount of such
Debt Security (or, in the case of a Debt Security described in clause (1)
or (2) above, of the amount described in such clause).
Certain Debt Securities, including those for whose payment or redemption money
has been deposited or set aside in trust for the Holders and those that have
been fully defeased pursuant to Section 1502, will not be deemed to be
Outstanding. (Section 101)
Except in certain limited circumstances, we will be entitled to set any day
as a record date for the purpose of determining the Holders of Outstanding Debt
Securities of any series entitled to give or take any direction, notice,
consent, waiver or other action under the applicable Indenture, in the manner
and subject to the limitations provided in the Indenture. In certain limited
circumstances, the Trustee will be entitled to set a record date for action by
Holders. If a record date is set for any action to be taken by Holders of a
particular series, such action may be taken only by persons who are Holders of
Outstanding Debt Securities of that series on the record date. To be effective,
such action must be taken by Holders of the requisite principal amount of such
Debt Securities within a specified period following the record date. For any
particular record date, this period will be 180 days or such other period as may
be specified by us (or the Trustee, if it set the record date), and may be
shortened or lengthened (but not beyond 180 days) from time to time. (Section
104)
DEFEASANCE AND COVENANT DEFEASANCE
To the extent indicated in the applicable prospectus supplement, we may
elect, at our option at any time, to have the provisions of Section 1502,
relating to defeasance and discharge of indebtedness, or Section 1503, relating
to defeasance of certain restrictive covenants applied to the Debt Securities of
any series, or to any specified part of a series. (Section 1501)
Defeasance and Discharge. The Indentures provide that, upon our exercise
of our option (if any) to have Section 1502 applied to any Debt Securities, we
and, if applicable, each Subsidiary Guarantor will be discharged from all our
obligations, and, if such Debt Securities are Subordinated Debt Securities, the
provisions of the Subordinated Indenture relating to subordination (but not to
conversion, if applicable) will cease to be effective, with respect to such Debt
Securities (except for certain obligations to exchange or register the transfer
of Debt Securities, to replace stolen, lost or mutilated Debt Securities, to
maintain paying agencies and to hold moneys for payment in trust) upon the
deposit in trust for the benefit of the Holders of such Debt Securities of money
or U.S. Government Obligations, or both, which, through the payment of principal
and interest in respect thereof in accordance with their terms, will provide
money in an amount sufficient to pay the principal of and any premium and
interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the applicable Indenture and such Debt Securities.
Such defeasance or discharge may occur only if, among other things,
(1) we have delivered to the applicable Trustee an Opinion of Counsel
to the effect that we have received from, or there has been published by,
the United States Internal Revenue Service a
15
ruling, or there has been a change in tax law, in either case to the effect
that Holders of such Debt Securities will not recognize gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge were not to occur;
(2) no Event of Default or event that with the passing of time or the
giving of notice, or both, shall constitute an Event of Default shall have
occurred and be continuing;
(3) such deposit, defeasance and discharge will not result in a breach
or violation of, or constitute a default under, any agreement or instrument
to which we are a party or by which we are bound;
(4) in the case of Subordinated Debt Securities, at the time of such
deposit, no default in the payment of all or a portion of principal of (or
premium, if any) or interest on any of our Senior Debt shall have occurred
and be continuing, no event of default shall have resulted in the
acceleration of any of our Senior Debt and no other event of default with
respect to any of our Senior Debt shall have occurred and be continuing
that would permit, after notice or the lapse of time, or both, the
acceleration thereof; and
(5) we have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit shall not cause the Trustee or the trust so
created to be subject to the Investment Company Act of 1940. (Sections 1502
and 1504)
Defeasance of Certain Covenants. The Indentures provide that, upon our
exercise of our option (if any) to have Section 1503 applied to any Debt
Securities, we may omit to comply with certain restrictive covenants, including
those that may be described in the applicable prospectus supplement, the
occurrence of certain Events of Default, which are described above in clause (5)
(with respect to such restrictive covenants) and clauses (6) and (7) under
"Events of Default" and any that may be described in the applicable prospectus
supplement, will not be deemed to either be or result in an Event of Default
and, if such Debt Securities are Subordinated Debt Securities, the provisions of
the Subordinated Indenture relating to subordination (but not to conversion, if
applicable) will cease to be effective, in each case with respect to such Debt
Securities. In order to exercise such option, we must deposit, in trust for the
benefit of the Holders of such Debt Securities, money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance with the terms of
the applicable Indenture and such Debt Securities. Such covenant defeasance may
occur only if we have delivered to the applicable Trustee an Opinion of Counsel
that in effect says that Holders of such Debt Securities will not recognize gain
or loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit and defeasance were not to occur, and the requirements set
forth in clauses (2), (3), (4) and (5) above are satisfied. If we exercise this
option with respect to any Debt Securities and such Debt Securities were
declared due and payable because of the occurrence of any Event of Default, the
amount of money and U.S. Government Obligations so deposited in trust would be
sufficient to pay amounts due on such Debt Securities at the time of their
respective Stated Maturities but may not be sufficient to pay amounts due on
such Debt Securities upon any acceleration resulting from such Event of Default.
In such case, we would remain liable for such payments. (Sections 1503 and 1504)
NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
101 and 106)
16
TITLE
We, the Subsidiary Guarantors, the Trustees and any agent of us, the
Subsidiary Guarantors or a Trustee may treat the Person in whose name a Debt
Security is registered as the absolute owner of the Debt Security (whether or
not such Debt Security may be overdue) for the purpose of making payment and for
all other purposes. (Section 308)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the law of the State of New York. (Section 112)
DESCRIPTION OF CAPITAL STOCK
As of December 31, 2001, our authorized capital stock was 51,000,000
shares. Those shares consisted of: (a) 1,000,000 shares of preferred stock, par
value $.01 per share, none of which were outstanding; and (b) 50,000,000 shares
of common stock, par value $.01 per share, of which 22,726,498 shares were
outstanding. The following summary of certain provisions of our capital stock
does not purport to be complete and is subject to and is qualified in its
entirety by our certificate of incorporation and by-laws, which are incorporated
in this prospectus by reference as exhibits to the registration statement of
which this prospectus forms a part, and by the provisions of applicable law.
COMMON STOCK
Subject to any special voting rights of any series of preferred stock that
we may issue in the future, the holders of the common stock may vote one vote
for each share held on all matters voted upon by our stockholders, including the
election of our directors. Holders of common stock may not cumulate their votes
for election of directors.
Subject to the rights of any then outstanding shares of preferred stock,
the holders of common stock may receive such dividends as our board of directors
may declare in its discretion out of legally available funds. Holders of common
stock will share equally in our net assets upon liquidation after payment or
provision for all liabilities and any preferential liquidation rights of any
preferred stock then outstanding. The holders of common stock have no preemptive
rights to purchase our shares of stock. Shares of common stock are not subject
to any redemption provisions and are not convertible into any of our other
securities. All outstanding shares of common stock are fully paid and
non-assessable. Any additional common stock we issue will also be fully paid and
non-assessable.
PREFERRED STOCK
The prospectus supplement will specify any terms of any series of preferred
stock offered by it including:
- the series, the number of shares offered and the liquidation value of the
preferred stock;
- the price at which the preferred stock will be issued;
- the dividend rate, the dates on which the dividends will be payable and
other terms relating to the payment of dividends on the preferred stock;
- the liquidation preference of the preferred stock;
- the voting rights of the preferred stock;
- whether the preferred stock is redeemable or subject to a sinking fund,
and the terms of any such redemption or sinking fund;
- whether the preferred stock is convertible or exchangeable for any other
securities, and the terms of any such conversion; and
- any additional rights, preferences, qualifications, limitations and
restrictions of the preferred stock.
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The description of the terms of the preferred stock to be set forth in an
applicable prospectus supplement will not be complete and will be subject to and
qualified in its entirety by reference to the statement of resolution relating
to the applicable series of preferred stock. The statement of resolution
relating to the applicable series of preferred stock will be filed with the SEC
via a Current Report on Form 8-K prior to our initial offering of such
applicable series of preferred stock.
We may issue preferred stock from time to time in one or more series.
Subject to the provisions of our certificate of incorporation and limitations
prescribed by law, our board of directors may adopt resolutions to issue the
shares of preferred stock, to fix the number of shares, and to change the number
of shares constituting any series and establish the voting powers, designations
preferences and relative participating, optional or other special rights,
qualifications, limitations or restrictions thereof, including dividend rights
(including whether dividends are cumulative), dividend rates, terms of
redemption (including sinking fund provisions), redemption prices, conversion
rights and liquidation preferences of the shares constituting any series of
preferred stock, in each case without any further action or vote by our
stockholders.
Undesignated preferred stock may enable our board of directors to render
more difficult or to discourage an attempt to obtain control of us by means of a
tender offer, proxy contest, merger or otherwise, and to thereby protect the
continuity of our management. The issuance of shares of preferred stock may
adversely affect the rights of the holders of our common stock or any existing
preferred stock. For example, any preferred stock issued may rank prior to our
common stock or any existing preferred stock as to dividend rights, liquidation
preference or both, may have full or limited voting rights and may be
convertible into shares of common stock or any existing preferred stock. As a
result, the issuance of shares of preferred stock may discourage bids for our
common stock or may otherwise adversely affect the market price of our common
stock or any existing preferred stock.
ANTI-TAKEOVER PROVISIONS
Provisions of our certificate of incorporation and bylaws and our
stockholders' rights plan may encourage persons considering unsolicited tender
offers or other unilateral takeover proposals to negotiate with our board of
directors rather than pursue non-negotiated takeover attempts.
Classified Board of Directors and Limitations on Removal of Directors. Our
board of directors is divided into three classes. The directors of each class
are elected for three-year terms, and the terms of the three classes are
staggered so that directors from a single class are elected at each annual
meeting of stockholders. Stockholders may remove a director only for cause and
upon the vote of holders of at least 80% of the voting power of the outstanding
shares of common stock. In general, our board of directors, not the
stockholders, has the right to appoint persons to fill vacancies on the board of
directors.
No Written Consent by Stockholders. Our certificate of incorporation
provides that any action required or permitted to be taken by our stockholders
must be taken at a duly called annual or special meeting of our stockholders.
Special meetings of our stockholders may be called only by our board of
directors.
Business Combinations under Delaware Law. We are a Delaware corporation
and are subject to Section 203 of the Delaware General Corporation Law. Section
203 prevents an interested stockholder, a person who owns 15% or more of our
outstanding voting stock, from engaging in business combinations with us for
three years following the date that the person becomes an interested
stockholder. These restrictions do not apply if:
- before the person becomes an interested stockholder, our board of
directors approves the transaction in which the interested stockholder
becomes an interested stockholder or the business combination;
- upon completion of the transaction that results in the person becoming an
interested stockholder, the interested stockholder owns at least 85% of
our outstanding voting stock at the time the transaction commenced; or
18
- following the transaction in which the person becomes an interested
stockholder, the business combination is approved by our board of
directors and, at a meeting of our stockholders, by the holders of at
least two-thirds of our outstanding voting stock not owned by the
interested stockholder.
The law defines the term "business combination" to encompass a wide variety
of transactions with or caused by an interested stockholder, including mergers,
asset sales and other transactions in which the interested stockholder receives
or could receive a benefit on other than a pro rata basis with other
stockholders. This law could have an anti-takeover effect with respect to
transactions not approved in advance by our board of directors, including
discouraging takeover attempts that might result in a premium over the market
price for the shares of our common stock.
Stockholders' Rights Plan. Our board of directors has adopted a
stockholders' rights plan. Under the rights plan, each right entitles the
registered holder under the circumstances described below to purchase from us
one one-thousandth of a share of our junior participating preferred stock at a
price of $65 per one one-thousandth of a share, subject to adjustment. The
following is a summary of certain terms of the rights plan. The rights plan is
filed as an exhibit to the registration statement of which this prospectus is a
part and this summary is qualified by reference to the specific terms of the
rights plan.
Until the date of distribution of the rights to stockholders, the rights
attach to all common stock certificates representing outstanding shares. During
such time, no separate right certificate will be distributed. A right is issued
for each share of common stock issued. The rights will separate from the common
stock and be distributed to our stockholders upon the earlier of:
- 10 business days following a public announcement that a person or group
of affiliated or associated persons has acquired beneficial ownership of
20% or more of our outstanding voting shares, or
- 10 business days following the commencement or announcement of an
intention to commence a tender offer or exchange offer, the consummation
of which would result in the person or group beneficially owning 20% or
more of our outstanding voting shares.
Until the date of distribution of the rights or the earlier of redemption
or expiration of the rights, the rights are evidenced by the certificates
representing the common stock. As soon as practicable following the date of
distribution of the rights, separate certificates evidencing the rights will be
mailed to holders of record of the common stock as of the close of business on
the date of distribution and such separate certificates alone will thereafter
evidence the rights.
The rights are not exercisable until the date they are distributed. The
rights will expire on November 4, 2007 unless the expiration date is extended or
the rights are earlier redeemed or exchanged.
If a person or group acquires 20% or more of our voting shares, each right
then outstanding (other than rights beneficially owned by the person or group
who acquires 20% of our voting shares) becomes a right to buy that number of
shares of common stock (or under certain circumstances, the equivalent number of
one one-thousandths of a participating preferred stock) that at the time of the
acquisition has a market value of two times the purchase price of the right.
If we are acquired in a merger or other business combination transaction or
assets constituting more than 50% of our consolidated assets or producing more
than 50% of our earning power or cash flow are sold, proper provision will be
made so that each holder of a right will have the right to receive, upon the
exercise of the right at the then current purchase price of the right, that
number of shares of common stock of the acquiring company which at the time of
such transaction has a market value of two times the purchase price of the
right.
The dividend and liquidation rights, and the non-redemption feature of the
participating preferred stock are designed so that the value of one
one-thousandth of a share of participating preferred stock purchasable upon
exercise of each right will approximate the value of one share of common stock.
The participating preferred stock issuable upon exercise of the rights will be
non-redeemable and rank junior to all other series of our preferred stock. Each
whole share will be entitled to receive a quarterly preferential
19
dividend in an amount per share equal to the greater of (1) $1.00 in cash, or
(2) in the aggregate, 1,000 times the dividend declared on the common stock. In
the event of liquidation, the holders of the shares may receive a preferential
liquidation payment equal to the greater of (a) $1,000 per share, or (b) in the
aggregate, 1,000 times the payment made on the shares of common stock. In the
event of any merger, consolidation or other transaction in which the shares of
common stock are exchanged for or changed into other stock or securities, cash
or other property, each whole share of participating preferred stock will be
entitled to receive 1,000 times the amount received per share of common stock.
Each whole share of participating preferred stock will be entitled to 1,000
votes on all matters submitted to a vote of our stockholders and the shares will
generally vote together as one class with the common stock and any other capital
stock on all matters submitted to a vote of our stockholders.
The number of outstanding rights and the number of one one-thousandths of a
share of participating preferred stock or other securities or property issuable
upon exercise of the rights, and the purchase price payable, may be adjusted
from time to time to prevent dilution.
At any time after a person or group of affiliated or associated persons
acquires beneficial ownership of 20% or more of our outstanding voting shares
and before a person or group acquires beneficial ownership of 50% or more of our
outstanding voting shares our board of directors may, at its option, issue
common stock in mandatory redemption of, and in exchange for, all or part of the
then outstanding and exercisable rights (other than rights owned by such person
or group which would become null and void) at an exchange ratio of one share of
common stock (or one one-thousandth of a share of participating preferred stock)
for each two shares of common stock for which each right is then exercisable,
subject to adjustment.
At any time prior to the first public announcement that a person or group
has become the beneficial owner of 20% or more of our outstanding voting shares,
our board of directors may redeem all but not less than all the then outstanding
rights at a price of $0.01 per right. The redemption of the rights may be made
on the terms established by our board of directors. Immediately upon the action
of our board of directors ordering redemption of the rights, the right to
exercise the rights will terminate and the only right of the holders of rights
will be to receive the redemption price.
LIMITATION OF DIRECTOR AND OFFICER LIABILITY
Delaware law authorizes corporations to limit or eliminate the personal
liability of officers and directors to corporations and their stockholders for
monetary damages for breach of officers' and directors' fiduciary duty of care.
The duty of care requires that, when acting on behalf of the corporation,
officers and directors must exercise an informed business judgment based on all
material information reasonably available to them. Absent the limitations
authorized by Delaware law, officers and directors are accountable to
corporations and their stockholders for monetary damages for conduct
constituting gross negligence in the exercise of their duty of care. Delaware
law enables corporations to limit available relief to equitable remedies such as
injunction or rescission.
Our certificate of incorporation limits the liability of our officers and
directors to us and our stockholders to the fullest extent permitted by Delaware
law. Specifically, our officers and directors will not be personally liable for
monetary damages for breach of an officer's or director's fiduciary duty in such
capacity, except for liability
- for any breach of the officer's or director's duty of loyalty to us or
our stockholders,
- for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law,
- for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General
Corporation Law, or
- for any transaction from which the officer or director derived an
improper personal benefit.
20
The inclusion of this provision in our certificate of incorporation may
reduce the likelihood of derivative litigation against our officers and
directors, and may discourage or deter stockholders or management from bringing
a lawsuit against our officers and directors for breach of their duty of care,
even though such an action, if successful, might have otherwise benefited us and
our stockholders.
Both our certificate of incorporation and bylaws provide indemnification to
our officers and directors and certain other persons with respect to certain
matters to the maximum extent allowed by Delaware law as it exists now or may
hereafter be amended. These provisions do not alter the liability of officers
and directors under federal securities laws and do not affect the right to sue
(nor to recover monetary damages) under federal securities laws for violations
thereof.
TRANSFER AGENT AND REGISTRAR
Our transfer agent and registrar of the common stock, as well as the rights
agent under our rights plan, is Mellon Investor Services, L.L.C.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
We may offer fractional shares of preferred stock, rather than full shares
of preferred stock. If we decide to offer fractional shares of preferred stock,
we will issue receipts for depositary shares. Each depositary share will
represent a fraction of a share of a particular series of preferred stock. The
prospectus supplement will indicate that fraction. The shares of preferred stock
represented by depositary shares will be deposited under a depositary agreement
between us and a bank or trust company that meets certain requirements and is
selected by us (the "Bank Depositary"). Each owner of a depositary share will be
entitled to all the rights and preferences of the preferred stock represented by
the depositary share. The depositary shares will be evidenced by depositary
receipts issued pursuant to the depositary agreement. Depositary receipts will
be distributed to those persons purchasing the fractional shares of preferred
stock in accordance with the terms of the offering.
We have summarized selected provisions of a depositary agreement and the
related depositary receipts. The summary is not complete. The forms of the
deposit agreement and the depositary receipts relating to any particular issue
of depositary shares will be filed with the SEC via a Current Report on form 8-K
prior to our offering of the depositary shares, and you should read such
documents for provisions that may be important to you.
DIVIDENDS AND OTHER DISTRIBUTIONS
If we pay a cash distribution or dividend on a series of preferred stock
represented by depositary shares, the Bank Depositary will distribute such
dividends to the record holders of such depositary shares. If the distributions
are in property other than cash, the Bank Depositary will distribute the
property to the record holders of the depositary shares. However, if the Bank
Depositary determines that it is not feasible to make the distribution of
property, the Bank Depositary may, with our approval, sell such property and
distribute the net proceeds from such sale to the record holders of the
depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If we redeem a series of preferred stock represented by depositary shares,
the Bank Depositary will redeem the depositary shares from the proceeds received
by the Bank Depositary in connection with the redemption. The redemption price
per depositary share will equal the applicable fraction of the redemption price
per share of the preferred stock. If fewer than all the depositary shares are
redeemed, the depositary shares to be redeemed will be selected by lot or pro
rata as the Bank Depositary may determine.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the preferred
stock represented by depositary shares are entitled to vote, the Bank Depositary
will mail the notice to the record holders of the depositary shares relating to
such preferred stock. Each record holder of these depositary shares on the
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record date (which will be the same date as the record date for the preferred
stock) may instruct the Bank Depositary as to how to vote the preferred stock
represented by such holder's depositary shares. The Bank Depositary will
endeavor, insofar as practicable, to vote the amount of the preferred stock
represented by such depositary shares in accordance with such instructions, and
we will take all action which the Bank Depositary deems necessary in order to
enable the Bank Depositary to do so. The Bank Depositary will abstain from
voting shares of the preferred stock to the extent it does not receive specific
instructions from the holders of depositary shares representing such preferred
stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the depositary agreement may be amended by agreement between the
Bank Depositary and us. However, any amendment that materially and adversely
alters the rights of the holders of depositary shares will not be effective
unless such amendment has been approved by the holders of at least a majority of
the depositary shares then outstanding. The depositary agreement may be
terminated by the Bank Depositary or us only if (1) all outstanding depositary
shares have been redeemed or (2) there has been a final distribution in respect
of the preferred stock in connection with any liquidation, dissolution or
winding up of our company and such distribution has been distributed to the
holders of depositary receipts.
CHARGES OF BANK DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges of
the Bank Depositary in connection with the initial deposit of the preferred
stock and any redemption of the preferred stock. Holders of depositary receipts
will pay other transfer and other taxes and governmental charges and any other
charges, including a fee for the withdrawal of shares of preferred stock upon
surrender of depositary receipts, as are expressly provided in the depositary
agreement to be for their accounts.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of depositary receipts at the principal office of the Bank
Depositary, subject to the terms of the depositary agreement, the owner of the
depositary shares may demand delivery of the number of whole shares of preferred
stock and all money and other property, if any, represented by those depositary
shares. Partial shares of preferred stock will not be issued. If the depositary
receipts delivered by the holder evidence a number of depositary shares in
excess of the number of depositary shares representing the number of whole
shares of preferred stock to be withdrawn, the Bank Depositary will deliver to
such holder at the same time a new depositary receipt evidencing the excess
number of depositary shares. Holders of preferred stock thus withdrawn may not
thereafter deposit those shares under the depositary agreement or receive
depositary receipts evidencing depositary shares therefor.
MISCELLANEOUS
The Bank Depositary will forward to holders of depositary receipts all
reports and communications from us that are delivered to the Bank Depositary and
that we are required to furnish to the holders of the preferred stock.
Neither the Bank Depositary nor we will be liable if we are prevented or
delayed by law or any circumstance beyond our control in performing our
obligations under the depositary agreement. The obligations of the Bank
Depositary and us under the depositary agreement will be limited to performance
in good faith of our duties thereunder, and we will not be obligated to
prosecute or defend any legal proceeding in respect of any depositary shares or
preferred stock unless satisfactory indemnity is furnished. We may rely upon
written advice of counsel or accountants, or upon information provided by
persons presenting preferred stock for deposit, holders of depositary receipts
or other persons believed to be competent and on documents believed to be
genuine.
22
RESIGNATION AND REMOVAL OF BANK DEPOSITARY
The Bank Depositary may resign at any time by delivering to us notice of
its election to do so, and we may at any time remove the Bank Depositary. Any
such resignation or removal will take effect upon the appointment of a successor
Bank Depositary and its acceptance of such appointment. Such successor Bank
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of our common stock. Warrants may be
issued independently or together with Debt Securities, preferred stock or common
stock offered by any prospectus supplement and may be attached to or separate
from any such offered securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a bank or trust
company, as warrant agent, all as set forth in the prospectus supplement
relating to the particular issue of warrants. The warrant agent will act solely
as our agent in connection with the warrants and will not assume any obligation
or relationship of agency or trust for or with any holders of warrants or
beneficial owners of warrants. The following summary of certain provisions of
the warrants does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, all provisions of the warrant agreements.
You should refer to the prospectus supplement relating to a particular
issue of warrants for the terms of and information relating to the warrants,
including, where applicable:
(1) the number of shares of common stock purchasable upon exercise of
the warrants and the price at which such number of shares of common stock
may be purchased upon exercise of the warrants;
(2) the date on which the right to exercise the warrants shall
commence and the date on which such right shall expire;
(3) United States Federal income tax consequences applicable to the
warrants;
(4) the amount of the warrants outstanding as of the most recent
practicable date; and
(5) any other terms of the warrants.
Warrants will be offered and exercisable for U.S. dollars only. Warrants
will be issued in registered form only. Each warrant will entitle its holder to
purchase such number of shares of common stock at such exercise price as shall
in each case be set forth in, or calculable from, the prospectus supplement
relating to the warrants. The exercise price may be subject to adjustment upon
the occurrence of events described in such prospectus supplement. After the
close of business on the expiration date of the Warrants (or such later date to
which we may extend such expiration date), unexercised warrants will become
void. The place or places where, and the manner in which, warrants may be
exercised will be specified in the prospectus supplement relating to such
warrants.
Prior to the exercise of any warrants, holders of the warrants will not
have any of the rights of holders of common stock, including the right to
receive payments of any dividends on the common stock purchasable upon exercise
of the warrants, or to exercise any applicable right to vote.
SELLING STOCKHOLDER
In addition to covering the offering of securities by us, this prospectus
covers the offering for resale of up to 700,000 shares of our common stock by
Robert E. Howard II. Mr. Howard has entered into a registration agreement with
us. Under the agreement, we have agreed to file this registration statement
covering Mr. Howard's 700,000 shares of common stock in return for Mr. Howard's
agreement not to sell any shares of our common stock owned by him, except for
shares of common stock sold pursuant to this registration statement, until the
earlier of (i) the first business day immediately following the consummation of
the sale of all his shares of common stock covered by this registration
statement or (ii) the first business day immediately following the termination
of the registration agreement by
23
Mr. Howard or us. The registration agreement allows us to defer the sale by Mr.
Howard of any shares of common stock covered by this registration statement
under certain circumstances. We have agreed to pay all expenses incurred in
connection with this registration statement, other than expenses that are
directly attributable to the inclusion of Mr. Howard's shares of our common
stock in this registration statement. In addition, Mr. Howard will pay any
underwriters' discounts and commissions applicable to his shares of common stock
covered by this registration statement as well as the costs for experts or
professionals, including counsel, employed by Mr. Howard or on his behalf in
connection with the registration of his shares under the registration agreement.
We have agreed to indemnify Mr. Howard for liabilities arising under the
Securities Act with respect to any offering of his shares pursuant to this
registration statement, other than liabilities arising from information
furnished by Mr. Howard. Mr. Howard has agreed to indemnify us for liabilities
arising under the Securities Act with respect to any such offering as a result
of information furnished by him.
The table below sets forth the following information relating to Mr.
Howard's beneficial ownership of shares of our common stock as of December 31,
2001:
- the number of shares of common stock owned by Mr. Howard before any sales
in connection with this prospectus;
- the number of shares of common stock that may be sold by Mr. Howard in
connection with this prospectus; and
- the number of shares of common stock that Mr. Howard would own if he sold
all of the shares that may be sold in connection with this prospectus.
<Table>
<Caption>
OWNERSHIP OWNERSHIP
BEFORE OFFERING AFTER OFFERING
------------------- SHARES THAT -------------------
SELLING STOCKHOLDER SHARES PERCENT MAY BE SOLD SHARES PERCENT
------------------- --------- ------- ----------- --------- -------
Robert E. Howard II(1)(2)................. 2,831,738 12.5 700,000 2,131,738 9.4
--------- ---- ------- --------- ---
</Table>
- ---------------
(1) Includes (i) 780,000 shares held by Howard Investments, L.L.C., which is
controlled by Mr. Howard and (ii) 25,450 shares held by Century Reinsurance
Company, Inc., which is controlled by Mr. Howard.
(2) Mr. Howard is a director and employee of our company. He has served as a
director of Group 1 since April 1997 and as President of the Howard Group
since November 1997. Mr. Howard has more than 32 years experience in the
automotive retailing industry. From 1969 to 1977, he served in various
management positions at franchised dealerships. From 1978 to November 1997,
he served as Chairman of Howard Pontiac-GMC, Inc., a franchised dealership
acquired by Group 1 in November 1997. Prior to November 1997, Mr. Howard was
also Chairman of the following companies acquired by Group 1 in November
1997: Bob Howard Chevrolet, Bob Howard Honda/Acura, Bob Howard Toyota and
Bob Howard Dodge. He was a recipient of the 1997 Time Magazine Quality
Dealer Award and presently serves as a Commissioner of the Oklahoma Motor
Vehicle Commission and as a Director of the Oklahoma City Metropolitan
Automobile Dealers Association.
PLAN OF DISTRIBUTION
We may sell securities pursuant to this prospectus in or outside the United
States (a) through underwriters or dealers, (b) through agents or (c) directly
to one or more purchasers, including our existing stockholders in a rights
offering. The prospectus supplement relating to any offering of securities will
include the following information:
- the terms of the offering
- the names of any underwriters, dealers or agents
- the name or names of any managing underwriter or underwriters
- the purchase price of the securities from us
- the net proceeds to us from the sale of the securities
24
- any delayed delivery arrangements
- any underwriting discounts, commissions and other items constituting
underwriters' compensation
- any initial public offering price
- any discounts or concessions allowed or reallowed or paid to dealers
- any commissions paid to agents
The selling stockholder may sell his shares covered by this registration
statement in or outside the United States (a) through underwriters or dealers,
(b) through agents or (c) directly to one or more purchasers. Unless otherwise
required by law, the selling stockholder may use this prospectus without an
accompanying prospectus supplement to consummate sales of his shares covered by
this registration statement. The methods by which the selling stockholder may
sell his shares covered by this registration statement include:
- a block trade
- purchases by a broker or dealer as principal and resale by such broker or
dealer for its own account pursuant to this prospectus
- exchange distributions and/or secondary distributions in accordance with
the rules of the New York Stock Exchange
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers
- privately negotiated transactions
SALE THROUGH UNDERWRITERS OR DEALERS
If underwriters are used in the sale, the underwriters will acquire the
securities for their own account. The underwriters may resell the securities
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and the
underwriters will be obligated to purchase all the offered securities if they
purchase any of them. The underwriters may change from time to time any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers.
Subject to any limitations imposed by federal securities law, we may engage
in at the market offerings of our common stock in which Goldman, Sachs & Co.
will act as the underwriter. An at the market offering is an offering of our
common stock at other than a fixed price on or through the facilities of the
NYSE.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, which means that selling concessions
allowed to syndicate members or other broker-dealers for the offered securities
sold for their account may be reclaimed by the syndicate if the offered
securities are repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise affect the
market price of the offered securities, which may be higher than the price that
might otherwise prevail in the open market. If commenced, the underwriters may
discontinue these activities at any time.
25
If dealers are used in the sale, the securities will be sold to them as
principals. They may then resell those securities to the public at varying
prices determined by the dealers at the time of resale.
DIRECT SALES AND SALES THROUGH AGENTS
Securities may also be sold directly by us or the selling stockholder. In
this case, no underwriters or agents would be involved. We or the selling
stockholder may sell securities upon the exercise of rights that may be issued
to our security holders. We or the selling stockholder may also sell the
securities directly to institutional investors or others who may be deemed to be
underwriters within the meaning of the Securities Act with respect to any sale
of those securities.
We may sell the securities through agents we designate from time to time.
Unless we inform you otherwise in the prospectus supplement, any agent will
agree to use its reasonable best efforts to solicit purchases for the period of
its appointment.
DELAYED DELIVERY CONTRACTS
If we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
GENERAL INFORMATION
We may have agreements with the agents, dealers and underwriters to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments that the agents,
dealers or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with or perform
services for us in the ordinary course of their business.
LEGAL MATTERS
Our legal counsel, Vinson & Elkins L.L.P., Houston, Texas, will pass upon
certain legal matters in connection with the offered securities. John S. Watson,
the Secretary of Group 1 Automotive, Inc., is a partner of Vinson & Elkins
L.L.P. and brother of Max P. Watson, Jr., one of our directors. Any underwriters
will be advised about other issues relating to any offering by their own legal
counsel.
EXPERTS
The financial statements included in the Annual Report on Form 10-K of
Group 1 Automotive, Inc. for the year ended December 31, 2000 incorporated by
reference in this prospectus, have been audited by Arthur Andersen LLP,
independent accountants, as indicated in their reports with respect thereto, and
are included herein in reliance upon the authority of said firm as experts in
giving said reports.
26
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses payable by Group 1 Automotive,
Inc. (sometimes referred to as the "Company" in this Part II of the Registration
Statement) in connection with the issuance and distribution of the securities.
All the amounts shown are estimates, except the registration fee.
<Table>
Registration fee............................................ $ 71,700
Fees and expenses of accountants............................ 150,000
Fees and expenses of legal counsel.......................... 125,000
Fees and expenses of Trustee and counsel.................... 15,000
Fees of rating agencies..................................... 75,000
Printing and engraving expenses............................. 125,000
Blue Sky fees and expenses (including counsel).............. 5,000
Miscellaneous............................................... 33,300
--------
Total............................................. $600,000
========
</Table>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Six, Part II, Section I of the Company's Restated Certificate of
Incorporation, a copy of which is filed as Exhibit 4.1, provides that directors,
officers, employees and agents shall be indemnified to the fullest extent
permitted by Section 145 of the Delaware General Corporation Law (the "DGCL").
Section 145 of the DGCL authorizes, inter alia, a corporation to indemnify
any person ("indemnitee") 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 such person
is or was an officer, director, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided that
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. A Delaware 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 or suit by or in right of the corporation to procure a judgment
in its favor by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation or of another corporation or other
enterprise at the former corporation's request against expenses (including
attorneys' fees) actually and reasonably incurred by the person in connection
with the defense or settlement of such action or suit if the person acted in
good faith and in a manner the person reasonably believed to be not opposed to
the best interests of the corporation and except that no indemnification is
permitted without judicial approval if such person is adjudged to be liable to
the corporation. Where a present or former officer or director is successful on
the merits or otherwise in defense of any action referred to above, or in
defense of any claim, issue or matter therein, the corporation must indemnify
him against the expenses (including attorney's fees) that he actually and
reasonably incurred in connection therewith. Section 145 further provides that
any indemnification shall be made by the corporation only as authorized in each
specific case upon a determination that indemnification of such person is proper
in the circumstances because the person has met the applicable standard of
conduct disclosed above. This determination must be made, with respect to a
person who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the
II-1
stockholders. Section 145 provides that indemnification pursuant to its
provision is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 145 of the DGCL also empowers the Company to purchase and maintain
insurance on behalf of any person who is or was an officer or director of the
Company against liability asserted against or incurred by him in any such
capacity, whether or not the Company would have the power to indemnify such
officer or director against such liability under the provisions of Section 145.
The form of Underwriting Agreements to be filed on a Current Report on Form
8-K with respect to the applicable offering of securities will contain certain
provisions for indemnification of directors and officers of the Company, the
selling stockholder and the Underwriters against civil liabilities under the
Securities Act. The registration agreement entered into between the Company and
the selling stockholder contains certain provisions for indemnification of the
Company and the selling stockholder against civil liabilities under the
Securities Act.
ITEM 16. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated herein by reference to a prior
filing of the Company under the Securities Act or the Exchange Act as indicated
in parentheses:
<Table>
<Caption>
EXHIBIT
NO. DESCRIPTION
------- -----------
**1.1 -- Underwriting Agreement (Debt Securities).
**1.2 -- Underwriting Agreement (Common Stock).
**1.3 -- Underwriting Agreement (Preferred Stock).
**1.4 -- Underwriting Agreement (Warrants).
4.1 -- Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
(Registration No. 333-29893)).
4.2 -- By-Laws of the Company (incorporated by reference to
Exhibit 3.3 to the Company's Registration Statement on
Form S-1 (Registration No. 333-29893)).
4.3 -- Certificate of Designation of Series A Junior
Participating Preferred Stock (incorporated by reference
to Exhibit 3.2 of the Company's Registration Statement on
Form S-1 (Registration No. 333-29893)).
4.4 -- Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.C., as rights agent dated
October 3, 1997 (incorporated by reference to Exhibit
10.10 of the Company's Registration Statement on Form S-1
(Registration No. 333-29893)).
*4.5 -- Form of Senior Indenture.
*4.6 -- Form of Subordinated Indenture.
**4.7 -- Form of Warrant Agreement.
**4.8 -- Form of Debt Securities.
**4.9 -- Form of Securities Warrants.
**4.10 -- Form of Depositary Agreement.
**4.11 -- Form of Depositary Receipt.
+5.1 -- Opinion of Vinson & Elkins L.L.P.
+12.1 -- Calculation of Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Arthur Andersen LLP.
+23.2 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit
5.1).
+24.1 -- Powers of Attorney (included on the signature pages of
this Registration Statement).
</Table>
II-2
<Table>
<Caption>
EXHIBIT
NO. DESCRIPTION
------- -----------
**25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Senior Indenture.
**25.2 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Subordinated Indenture.
</Table>
- ---------------
+ Previously filed.
* Filed herewith.
** To be filed by amendment or in a Current Report on Form 8-K.
ITEM 17. UNDERTAKINGS.
(a) Each undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Each undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement
II-3
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Each registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefits plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to any charter provision, by-law, contract, arrangement,
statute, or otherwise, each registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted against the registrant by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
(e) 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 ("Act") in accordance
with the rules and regulations prescribed by the Commission under section
305(b)(2) of the Act.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Group 1
Automotive, Inc. 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
GROUP 1 AUTOMOTIVE, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
SENIOR VICE PRESIDENT,
CHIEF FINANCIAL OFFICER
AND TREASURER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* Chairman, President and Chief Executive
- ----------------------------------------------------- Officer and Director (Principal Executive
B.B. HOLLINGSWORTH, JR. Officer)
/s/ SCOTT L. THOMPSON Senior Vice President, Chief Financial
- ----------------------------------------------------- Officer and Treasurer (Chief Financial and
SCOTT L. THOMPSON Accounting Officer)
* Director
- -----------------------------------------------------
ROBERT E. HOWARD II
* Director
- -----------------------------------------------------
JOHN L. ADAMS
* Director
- -----------------------------------------------------
JOHN H. DUNCAN
* Director
- -----------------------------------------------------
BENNETT E. BIDWELL
* Director
- -----------------------------------------------------
KEVIN H. WHALEN
* Director
- -----------------------------------------------------
MAX P. WATSON, JR.
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
BOB HOWARD AUTOMOTIVE EAST, INC.
BOB HOWARD AUTOMOTIVE-H, INC.
BOB HOWARD CHEVROLET, INC.
BOB HOWARD DODGE, INC.
BOB HOWARD GERMAN
IMPORTS, INC.
BOB HOWARD MOTORS, INC.
BOB HOWARD NISSAN, INC.
HOWARD PONTIAC-GMC, INC.
HOWARD-DC, INC.
HOWARD-GM, INC.
HOWARD-GM II, INC.
HOWARD-H, INC.
HOWARD-HA, INC.
HOWARD-SI, INC.
BY: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
ROBERT E. HOWARD II
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
CASA CHEVROLET INC.
CASA CHRYSLER PLYMOUTH JEEP INC.
JOHNS AUTOMOTIVE GROUP, INC.
SUNSHINE BUICK PONTIAC GMC TRUCK, INC.
CASA MITSUBISHI, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President
- ----------------------------------------------------- (Principal Executive Officer)
JERALD L. PATTERSON, JR.
/s/ SCOTT L. THOMPSON Vice President and Director
- ----------------------------------------------------- (Chief Financial and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Courtesy
Nissan, Inc. 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
COURTESY NISSAN, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
RONALD J. KUTZ
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Luby Chevrolet
Co. 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 or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 16, 2002.
LUBY CHEVROLET CO.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
RICHARD FLEISCHMAN
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
HIGHLAND AUTOPLEX, INC.
ROUND ROCK NISSAN, INC.
SMITH, LIU & KUTZ, INC.
TOWN NORTH NISSAN, INC.
TOWN NORTH SUZUKI, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
THOMAS NYLE MAXWELL, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
-----------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
FOYT MOTORS, INC.
MCCALL-H, INC.
MCCALL-SI, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
KEVIN H. WHALEN
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
-----------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
MIKE SMITH AUTOMOTIVE-H, INC.
MIKE SMITH AUTOMOTIVE-N, INC.
MIKE SMITH AUTOPLAZA, INC.
MIKE SMITH AUTOPLEX, INC.
MIKE SMITH AUTOPLEX BUICK, INC.
MIKE SMITH AUTOPLEX DODGE, INC.
MIKE SMITH AUTOPLEX-GERMAN IMPORTS,
INC.
MIKE SMITH AUTOPLEX-V, INC.
MIKE SMITH GM, INC.
MIKE SMITH MOTORS, INC.
MIKE SMITH IMPORTS, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
MICHAEL G. SMITH
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
-----------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
CHAPERRAL DODGE, LTD.
COLONIAL CHRYSLER-PLYMOUTH, LTD.
KUTZ-DC, LTD.
MAXWELL CHRYSLER PLYMOUTH DODGE
JEEP EAGLE, LTD.
PRESTIGE CHRYSLER PLYMOUTH NORTHWEST,
LTD.
PRESTIGE CHRYSLER PLYMOUTH SOUTH, LTD.
MAXWELL FORD, LTD.
MAXWELL-FII, LTD.
MAXWELL-SM, LTD.
MCCALL-TL, LTD.
MCCALL-HA, LTD.
MCCALL-T, LTD.
MCCALL-TII, LTD.
LUBBOCK MOTORS-F, LTD.
LUBBOCK MOTORS-T, LTD.
LUBBOCK MOTORS-S, LTD.
LUBBOCK MOTORS, LTD.
ROCKWALL AUTOMOTIVE-DCD, LTD.
ROCKWALL AUTOMOTIVE-F, LTD.
AMARILLO MOTORS-C, LTD.
AMARILLO MOTORS-F, LTD.
AMARILLO MOTORS-J, LTD.
AMARILLO MOTORS-SM, LTD.
LUBBOCK MOTORS-SH, LTD.
AMARILLO MOTORS-FM, LTD.
GPI, LTD.
By: Group 1 Associates, Inc.
General Partner
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
II-13
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ SCOTT L. THOMPSON Director, Group 1 Associates, Inc. (General
- ----------------------------------------------------- Partner)
SCOTT L. THOMPSON
* Director, Group 1 Associates, Inc. (General
- ----------------------------------------------------- Partner)
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
HARVEY HOLDINGS, INC.
HARVEY-T, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
DONALD B. BOHN, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
HARVEY FORD, LLC
HARVEY GM, LLC
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
DONALD B. BOHN, JR.
/s/ SCOTT L. THOMPSON Vice President (Chief Financial and Accounting
- ----------------------------------------------------- Officer) Director, Harvey Holdings, Inc. (Sole
SCOTT L. THOMPSON Member)
* Director, Harvey Holdings, Inc. (Sole Member)
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Harvey
Operations-T, LLC 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
HARVEY OPERATIONS-T, LLC
By: /s/ SCOTT L. THOMPSON
----------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
DONALD B. BOHN, JR.
/s/ SCOTT L. THOMPSON Vice President (Chief Financial and Accounting
- ----------------------------------------------------- Officer) Director, Harvey-T, Inc. (Sole
SCOTT L. THOMPSON Member)
* Director, Harvey-T, Inc. (Sole Member)
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
PERIMETER FORD, INC.
JIM TIDWELL FORD, INC.
GPI ATLANTA-T, INC.
GPI ATLANTA-FLM, INC.
GPI ATLANTA-F, INC.
GPI ATLANTA-FLM II, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
KEVIN MCHUGH
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
KEY FORD, INC.
SHAMROCK CHEVROLET, INC.
BY: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
RANDY L. CALLISON
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in Fact
</Table>
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ira Automotive
Group, LLC 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 or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 16, 2002.
IRA AUTOMOTIVE GROUP, LLC
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
DAVID S. ROSENBERG
/s/ SCOTT L. THOMPSON Vice President (Chief Financial and
- ----------------------------------------------------- Accounting Officer) Director, Danvers-T, Inc.
SCOTT L. THOMPSON (Sole Member)
* Director, Danvers-T, Inc. (Sole Member)
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
DANVERS-DC, INC.
DANVERS-DCII, INC.
DANVERS-DCIII, INC.
DANVERS-GM, INC.
DANVERS-S, INC.
DANVERS-SU, INC.
DANVERS-T, INC.
DANVERS-TL, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President (Principal Executive Officer)
- -----------------------------------------------------
DAVID S. ROSENBERG
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Group 1 DCP,
Inc. 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 or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 16, 2002.
GROUP 1 DCP, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President and Director (Principal Executive
- ----------------------------------------------------- Officer)
B.B. HOLLINGSWORTH, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
JOHN T. TURNER
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in Fact
</Table>
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
GPI ACQUISITION, INC.
GROUP 1 REALTY, INC.
SMC INVESTMENT, INC.
KOONS FORD, INC.
COURTESY FORD, INC.
FLAMINGO FORD, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ SCOTT L. THOMPSON President and Director (Principal Executive
- ----------------------------------------------------- Officer, Chief Financial and Accounting
SCOTT L. THOMPSON Officer)
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Group 1
Associates, Inc. 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
GROUP 1 ASSOCIATES, INC.
By: /s/ SCOTT L. THOMPSON
------------------------------------
SCOTT L. THOMPSON
VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* President
- ----------------------------------------------------- (Principal Executive Officer)
B.B. HOLLINGSWORTH, JR.
/s/ SCOTT L. THOMPSON Vice President and Director
- ----------------------------------------------------- (Chief Financial and Accounting Officer)
SCOTT L. THOMPSON
* Director
- -----------------------------------------------------
J. BROOKS O'HARA
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in Fact
</Table>
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
GROUP 1 HOLDINGS-DC, L.L.C.
GROUP 1 HOLDINGS-T, L.L.C.
GROUP 1 HOLDINGS-GM, L.L.C.
GROUP 1 HOLDINGS-H, L.L.C.
GROUP 1 HOLDINGS-S, L.L.C.
GROUP 1 HOLDINGS-N, L.L.C.
By: /s/ SCOTT L. THOMPSON
----------------------------------
SCOTT L. THOMPSON
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ SCOTT L. THOMPSON President (Principal Executive Officer and
- ----------------------------------------------------- Chief Financial and Accounting Officer)
Scott L. Thompson
* Director, Group 1 Automotive, Inc. (Sole
- ----------------------------------------------------- Member)
B.B. Hollingsworth, Jr.
* Director, Group 1 Automotive, Inc. (Sole
- ----------------------------------------------------- Member)
Robert E. Howard II
* Director, Group 1 Automotive, Inc. (Sole
- ----------------------------------------------------- Member)
John L. Adams
* Director, Group 1 Automotive, Inc. (Sole
- ----------------------------------------------------- Member)
John H. Duncan
* Director, Group 1 Automotive, Inc. (Sole
- ----------------------------------------------------- Member)
Bennett E. Bidwell
</Table>
II-25
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* Director, Group 1 Automotive, Inc. (Sole
- ----------------------------------------------------- Member)
Kevin H. Whalen
* Director, Group 1 Automotive, Inc. (Sole
- ----------------------------------------------------- Member)
Max P. Watson, Jr.
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in Fact
</Table>
II-26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
GROUP 1 LP INTERESTS-DC, INC.
GROUP 1 LP INTERESTS-F, INC.
GROUP 1 LP INTERESTS-T, INC.
GROUP 1 LP INTERESTS-GM, INC.
GROUP 1 LP INTERESTS-H, INC.
GROUP 1 LP INTERESTS-S, INC.
GROUP 1 LP INTERESTS-N, INC.
By: /s/ MATHEW J. BAER
----------------------------------
MATHEW J. BAER
PRESIDENT AND SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ MATHEW J. BAER President and Secretary (Principal Executive
- ----------------------------------------------------- Officer)
Mathew J. Baer
* Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
Matthew McGovern
* Vice President and Director
- -----------------------------------------------------
Donald B. Bohn, Jr.
* Director
- -----------------------------------------------------
Pamela Jasinski
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Delaware
Acquisition-GM, L.L.C. 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
DELAWARE ACQUISITION-GM, L.L.C.
By: /s/ MATHEW J. BAER
------------------------------------
MATHEW J. BAER
MANAGER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* Director, Group 1 LP Interests-GM, Inc.
- ----------------------------------------------------- (Sole Member)
MATTHEW MCGOVERN
* Director, Group 1 LP Interests-GM, Inc.
- ----------------------------------------------------- (Sole Member)
DONALD B. BOHN, JR.
* Director, Group 1 LP Interests-GM, Inc.
- ----------------------------------------------------- (Sole Member)
PAMELA JASINSKI
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Delaware
Acquisition-F, L.L.C. 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
DELAWARE ACQUISITION-F, L.L.C.
By: /s/ MATHEW J. BAER
------------------------------------
MATHEW J. BAER
MANAGER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* Director, Group 1 LP Interests-F, Inc.
- ----------------------------------------------------- (Sole Member)
MATTHEW MCGOVERN
* Director, Group 1 LP Interests-F, Inc.
- ----------------------------------------------------- (Sole Member)
DONALD B. BOHN, JR.
* Director, Group 1 LP Interests-F, Inc.
- ----------------------------------------------------- (Sole Member)
PAMELA JASINSKI
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-29
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Delaware
Acquisition-DC, L.L.C. 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
DELAWARE ACQUISITION-DC, L.L.C.
By: /s/ MATHEW J. BAER
------------------------------------
MATHEW J. BAER
MANAGER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* Director, Group 1 LP Interests-DC, Inc.
- ----------------------------------------------------- (Sole Member)
MATTHEW MCGOVERN
* Director, Group 1 LP Interests-DC, Inc.
- ----------------------------------------------------- (Sole Member)
DONALD B. BOHN, JR.
* Director, Group 1 LP Interests-DC, Inc.
- ----------------------------------------------------- (Sole Member)
PAMELA JASINSKI
By: /s/ SCOTT L. THOMPSON
-------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Delaware
Acquisition-T, L.L.C. 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
DELAWARE ACQUISITION-T, L.L.C.
By: /s/ MATHEW J. BAER
------------------------------------
MATHEW J. BAER
MANAGER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
* Director, Group 1 LP Interests-T, Inc.
- ----------------------------------------------------- (Sole Member)
MATTHEW MCGOVERN
* Director, Group 1 LP Interests-T, Inc.
- ----------------------------------------------------- (Sole Member)
DONALD B. BOHN, JR.
* Director, Group 1 LP Interests-T, Inc.
- ----------------------------------------------------- (Sole Member)
PAMELA JASINSKI
*By: /s/ SCOTT L. THOMPSON
------------------------------------------------
SCOTT L. THOMPSON
As Attorney-in-Fact
</Table>
II-31
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned registrants 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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on January 16, 2002.
BOHN HOLDINGS-F, INC.
BOHN HOLDINGS-GM, INC.
By: /s/ DONALD B. BOHN, JR.
------------------------------------
DONALD B. BOHN, JR.
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ DONALD B. BOHN, JR. President (Principal Executive Officer)
- -----------------------------------------------------
DONALD B. BOHN, JR.
/s/ SCOTT L. THOMPSON Vice President and Director (Chief Financial
- ----------------------------------------------------- and Accounting Officer)
SCOTT L. THOMPSON
/s/ J. BROOKS O'HARA Director
- -----------------------------------------------------
J. BROOKS O'HARA
</Table>
II-32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bohn-FII, LLC
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 or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 16, 2002.
BOHN-FII, LLC
By: /s/ DONALD B. BOHN, JR.
------------------------------------
DONALD B. BOHN, JR.
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of January, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ DONALD B. BOHN, JR. President (Principal Executive Officer)
- -----------------------------------------------------
DONALD B. BOHN, JR.
/s/ SCOTT L. THOMPSON Vice President (Chief Financial and Accounting
- ----------------------------------------------------- Officer) Director, Bohn Holdings-F, Inc. (Sole
SCOTT L. THOMPSON Member)
/s/ J. BROOKS O'HARA Director, Bohn Holdings-F, Inc. (Sole Member)
- -----------------------------------------------------
J. BROOKS O'HARA
</Table>
II-33
INDEX TO EXHIBITS
<Table>
<Caption>
EXHIBIT
NO. DESCRIPTION
------- -----------
**1.1 -- Underwriting Agreement (Debt Securities).
**1.2 -- Underwriting Agreement (Common Stock).
**1.3 -- Underwriting Agreement (Preferred Stock).
**1.4 -- Underwriting Agreement (Warrants).
4.1 -- Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
(Registration No. 333-29893)).
4.2 -- By-Laws of the Company (incorporated by reference to
Exhibit 3.3 to the Company's Registration Statement on
Form S-1 (Registration No. 333-29893)).
4.3 -- Certificate of Designation of Series A Junior
Participating Preferred Stock (incorporated by reference
to Exhibit 3.2 of the Company's Registration Statement on
Form S-1 (Registration No. 333-29893)).
4.4 -- Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.C., as rights agent dated
October 3, 1997 (incorporated by reference to Exhibit
10.10 of the Company's Registration Statement on Form S-1
(Registration No. 333-29893)).
*4.5 -- Form of Senior Indenture.
*4.6 -- Form of Subordinated Indenture.
**4.7 -- Form of Warrant Agreement.
**4.8 -- Form of Debt Securities.
**4.9 -- Form of Securities Warrants.
**4.10 -- Form of Depositary Agreement.
**4.11 -- Form of Depositary Receipt.
+5.1 -- Opinion of Vinson & Elkins L.L.P.
+12.1 -- Calculation of Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Arthur Andersen LLP.
+23.2 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit
5.1).
+24.1 -- Powers of Attorney (included on the signature pages of
this Registration Statement).
**25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Senior Indenture.
**25.2 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Subordinated Indenture.
</Table>
- ---------------
+Previously filed.
* Filed herewith.
** To be filed by amendment or in a Current Report on Form 8-K.