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As filed with the Securities and Exchange Commission on October 14, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ENSCO INTERNATIONAL INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 76-0232579
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2700 FOUNTAIN PLACE
1445 ROSS AVENUE
DALLAS, TEXAS 75202-2792
(214) 922-1500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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C. CHRISTOPHER GAUT
VICE PRESIDENT-FINANCE AND CHIEF FINANCIAL OFFICER
2700 FOUNTAIN PLACE
1445 ROSS AVENUE
DALLAS, TEXAS 75202-2792
(214) 922-1500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With a copy to:
DANIEL W. RABUN
Baker & McKenzie
2001 Ross Avenue
Suite 4500
Dallas, Texas 75201
(214) 978-3000
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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 to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.[x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
[ ]___________________________________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
[ ]____________________________________
If delivery of the Prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Shares Aggregate Offering Amount of
to be Registered Price (1)(2)(3) Registration Fee
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Debt Securities . . . . . . . . . . . . .
Serial Preferred Stock, par value $1.00
per share . . . . . . . . . . . . . . . .
Common Stock, par value $.10 per share
(including Preferred Share Purchase
Rights) . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . $ 500,000,000 $151,516
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(1) Such indeterminate number or amount of Debt Securities, Serial Preferred
Stock or Common Stock as may from time to time be issued at indeterminate
prices in an aggregate public offering price for all securities of
$500,000,000. No separate consideration will be received for any Debt
Securities, Serial Preferred Stock or Common Stock issuable upon
conversion of or in exchange for Debt Securities or Serial Preferred
Stock. Such amount is exclusive of accrued interest or dividends, if any.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933.
(3) In no event will the aggregate offering price of all securities issued
from time to time pursuant to this Registration Statement exceed
$500,000,000 or the equivalent thereof in one or more foreign currencies
(including composite currencies).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED ____________, 1997
PROSPECTUS
$500,000,000
[ENSCO LOGO]
DEBT SECURITIES, PREFERRED STOCK AND COMMON STOCK
ENSCO International Incorporated (the "Company") may from time to time
offer, together or separately, its (i) unsecured debt securities consisting of
notes, debentures or other evidences of indebtedness (the "Debt Securities"),
in one or more series, which may be either senior debt securities (the "Senior
Debt Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (ii) shares of its Serial Preferred Stock, par value $1.00 per
share (the "Preferred Stock"), and (iii) shares of its Common Stock, par value
$.10 per share (the "Common Stock"), in amounts, at prices and on terms to be
determined at the time of the offering. The Debt Securities, Preferred Stock
and Common Stock are collectively called the "Securities."
The Securities offered pursuant to this Prospectus may be issued in one or
more series or issuances and will be limited to $500,000,000 in aggregate
initial public offering price. Certain specific terms of the particular
Securities in respect of which this Prospectus is being delivered will be set
forth in an accompanying Prospectus Supplement (the "Prospectus Supplement"),
including, where applicable, (i) in the case of Debt Securities, the specific
title, aggregate principal amount, the denomination, maturity, premium, if any,
the interest, if any (which may be at a fixed or variable rate), the time and
method of calculating payment of interest, if any, the place or places where
principal of (and premium, if any) and interest, if any, on such Debt
Securities will be payable, the currency or currencies (including composite
currencies) in which principal of (and premium, if any) and interest, if any,
on such Debt Securities will be payable, any terms of redemption at the option
of the Company or the holder, any sinking fund provisions, terms for any
conversion into Common Stock, the initial public offering price, listing (if
any) on a securities exchange or quotation (if any) on an automated quotation
system, acceleration, if any, and other terms and (ii) in the case of Preferred
Stock, the specific title, the aggregate number of shares offered, any dividend
(including the method of calculating payment of dividends), liquidation,
redemption, voting and other rights, any terms for any conversion or exchange
into Common Stock or Debt Securities, the initial public offering price,
listing (if any) on a securities exchange or quotation (if any) on an automated
quotation system and other terms. If so specified in the applicable Prospectus
Supplement, Debt Securities of a series may be issued in whole or in part in
the form of one or more temporary or permanent global securities.
The Common Stock is listed on the New York Stock Exchange under the
trading symbol "ESV." Any Common Stock sold pursuant to a Prospectus Supplement
will be listed on the New York Stock Exchange, subject to official notice of
issuance.
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities, when issued, will be unsecured and will rank equally with all other
unsecured and unsubordinated indebtedness of the Company. The Subordinated Debt
Securities, when issued, will be subordinated in right of payment to all Senior
Debt (as defined in the applicable Prospectus Supplement) of the Company.
The Prospectus Supplement will contain information concerning certain
United States federal income tax considerations, if applicable, to the
Securities offered.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement relating to such Securities. Any
statement contained in this Prospectus will be deemed to be modified or
superseded by any inconsistent statement contained in an accompanying
Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The Securities will be sold directly, through agents, underwriters or
dealers as designated from time to time, or through a combination of such
methods. If agents of the Company or any dealers or underwriters are involved
in the sale of the Securities in respect of which this Prospectus is being
delivered, the names of such agents, dealers or underwriters and any applicable
commissions or discounts will be set forth in or may be calculated from the
Prospectus Supplement with respect to such Securities. See "Plan of
Distribution" for possible indemnification arrangements with agents, dealers
and underwriters.
The date of this Prospectus is , 1997.
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IN CONNECTION WITH THE OFFERING OF CERTAIN SECURITIES, THE UNDERWRITERS
MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICES OF SUCH SECURITIES, OTHER SECURITIES OF THE COMPANY OR ANY SECURITIES,
THE PRICES OF WHICH MAY BE USED TO DETERMINE PAYMENTS ON SUCH SECURITIES AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus or a Prospectus
Supplement in connection with the offering described herein and therein, and
any information or representations not contained herein or therein must not be
relied upon as having been authorized by the Company or by any underwriter,
dealer or agent. This Prospectus may not be used to consummate sales of
Securities unless accompanied by a Prospectus Supplement relating to such
Securities. Neither this Prospectus nor any Prospectus Supplement shall
constitute an offer to sell or a solicitation of an offer to buy any of the
Securities covered by this Prospectus in any jurisdiction to any person to whom
it is unlawful to make such offer or solicitation in such jurisdiction. The
delivery of this Prospectus and the applicable Prospectus Supplement at any
time does not imply that the information herein is correct as of any time
subsequent to the date hereof.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Securities being
offered by this Prospectus (the "Registration Statement"). This Prospectus,
which constitutes a part of the Registration Statement, does not contain all of
the information set forth in the Registration Statement, certain items of which
are contained in exhibits and schedules to the Registration Statement as
permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the Securities offered hereby,
reference is made to the Registration Statement, including the exhibits
thereto, and the financial statements and notes filed as a part thereof.
Statements made in this Prospectus concerning the contents of any contract,
agreement or other document filed with the Commission as an exhibit are not
necessarily complete. With respect to each such contract, agreement or other
document filed with the Commission as an exhibit, reference is made to the
exhibit for a more complete description of the matter involved, and each such
statement shall be deemed qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Commission. The reports, proxy statements and other information filed by the
Company with the Commission pursuant to the informational requirements of the
Exchange Act may be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices at 7 World
Trade Center, 13th Floor, New York, New York 10048 and the Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such documents can also be obtained at prescribed rates from the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Company is an electronic filer under the EDGAR
(Electronic Data Gathering, Analysis and Retrieval) system maintained by the
Commission. The Commission maintains a Web site (http://www.sec.gov) on the
Internet that contains reports, proxy and information statements and other
information regarding companies that file electronically with the Commission.
In addition, documents filed by the Company can be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
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INCORPORATION BY REFERENCE
The following documents, which have been filed by the Company (File No.
1-8097) with the Commission, are incorporated herein by reference:
(i) the Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(ii) the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1997 and June 30, 1997;
(iii) the Company's Current Report on Form 8-K dated March 4, 1997;
(iv) the description of the Company's Preferred Share Purchase Rights
contained in its Registration Statement on Form 8-A filed with the
Commission on February 23, 1995 as amended by Form 8-A/A-1 filed
with the Commission on March 4, 1997; and
(v) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-B filed with the
Commission on November 12, 1987 and the Registration Statement on
Form 8-A, filed with the Commission on February 3, 1981, as amended
by Form 8, filed with the Commission on August 22, 1985.
All documents and reports filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering of Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents or reports.
Any statement contained in a document which is, or is deemed to be,
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
(or in any other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein) modifies or supersedes the previous
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any document incorporated by reference in this Prospectus, other than exhibits
to any such document unless such exhibits are specifically incorporated by
reference in the documents this Prospectus incorporates. Requests for such
documents should be directed to ENSCO International Incorporated, 2700 Fountain
Place, 1445 Ross Avenue, Dallas, Texas 75202-2792, Attention: Corporate
Secretary; telephone number (214) 922-1500.
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THE COMPANY
The Company is an international offshore contract drilling company that
also provides marine transportation services in the Gulf of Mexico. The
Company's complement of offshore drilling rigs includes 35 jackup rigs, 10
barge drilling rigs and eight platform rigs. The Company's operations are
integral to the exploration, development and production of oil and gas.
The Company was formed as a Texas corporation in 1975 and was
reincorporated in Delaware in 1987. The Company's principal office is located
at 2700 Fountain Place, 1445 Ross Avenue, Dallas, Texas 75202-2792 and its
telephone number is (214) 922-1500.
USE OF PROCEEDS
Except as otherwise set forth in a Prospectus Supplement, the net proceeds
from the sale of the Securities will be used for general corporate purposes,
which may include the repayment of existing debt, working capital, capital
expenditures, acquisitions and/or the repurchase of securities of the Company.
The precise amounts and timing of the application of such net proceeds for such
purposes will depend upon a variety of factors, including the Company's funding
requirements and the availability of alternative sources of funding. The
Company routinely reviews acquisition opportunities. Any proposal to use
proceeds from any offering of Securities will be disclosed in the Prospectus
Supplement relating to such offering.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the Company's ratios of earnings to fixed
charges and the ratio of earnings to combined fixed charges and preferred stock
dividends for each of the periods set forth below.
Six Months Ended Fiscal Years Ended
June 30, December 31,
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1997 1996 1996 1995 1994 1993 1992(1)
--------- --------- ---------- ----------- ---------- ----------- -----------
Ratio of Earnings to
Fixed Charges . . . . . . . . . 13.5 6.8 7.6 3.7 3 .6 3.3 --
Ratio of Earnings to
Combined Fixed Charges and
Preferred Stock Dividends(2) . . 13.5 6.8 7.6 3.7 3 .1 2.3 --
(1) The Company's earnings before fixed charges were inadequate on a
historical basis to cover fixed charges for the year ended December
31, 1992. The additional amount of earnings required to cover fixed
charges for 1992 would have been $18.3 million, and the additional
amount of earnings required to cover combined fixed charges and
preferred stock dividends for 1992 would have been $22.1 million.
(2) The Company eliminated its preferred stock dividend obligations in
1994.
For purposes of computing the ratio of earnings to fixed charges and the
ratio of earnings to combined fixed charges and preferred stock dividends,
"earnings" consist of income before income taxes plus fixed charges (excluding
capitalized interest). "Fixed charges" represent interest incurred (whether
expensed or capitalized), amortization of debt expense and that portion of
rental expense on operating leases deemed to be the equivalent of interest.
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DESCRIPTION OF DEBT SECURITIES
GENERAL
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate (the "Offered Debt Securities"). The particular terms of the Offered
Debt Securities and the extent to which such general provisions may apply will
be described in a Prospectus Supplement relating to such Offered Debt
Securities.
The Debt Securities will be issued under an Indenture (the "Indenture")
between the Company and a trustee (the "Trustee"). The statements under this
caption relating to the Debt Securities and the Indenture are summaries only
and do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all of the provisions of the Indenture,
including the definitions therein. A copy of the form of the Indenture is
filed as an exhibit to the Registration Statement of which this Prospectus is a
part. See "Available Information." Certain capitalized terms used below and
not defined herein have the respective meanings assigned to them in the
Indenture.
TERMS
The Debt Securities will be general unsecured obligations of the Company
and may be either Senior Debt Securities or Subordinated Debt Securities. The
Indenture does not limit the aggregate principal amount of Debt Securities that
can be issued thereunder and provides that Debt Securities may be issued from
time to time thereunder in one or more series, each in an aggregate principal
amount authorized by the Company prior to issuance. The Indenture does not
limit the amount of other unsecured indebtedness or securities that may be
issued by the Company.
Unless otherwise indicated in a Prospectus Supplement, the Debt Securities
will not benefit from any covenant or other provision that would afford Holders
of such Debt Securities special protection in the event of a highly leveraged
transaction involving the Company.
The specific terms of each series of Offered Debt Securities, which will be
issued in registered form, will be set forth in the applicable Prospectus
Supplement relating thereto, including, without limitation, the following, as
applicable:
1. the title and aggregate principal amount of the Offered Debt
Securities;
2. the date or dates on which the Offered Debt Securities will
mature;
3. the rate or rates (which may be fixed or variable) per annum,
if any, at which the Offered Debt Securities will bear
interest or the method of determining such rate or rates;
4. the date or dates from which such interest, if any, will
accrue and the date or dates at which such interest, if any,
will be payable;
5. the place or places, where, subject to any provision of the
Indenture, the principal of (and premium, if any) and any
interest on the Offered Debt Securities is payable;
6. whether the Offered Debt Securities will be Senior Debt
Securities or Subordinated Debt Securities;
7. the terms for redemption or early payment, if any, including
any mandatory or optional sinking fund or analogous provision;
8. the terms and conditions, if applicable, upon which such
Offered Debt Securities will be convertible into Preferred
Stock or Common Stock or exchangeable for Preferred Stock or
Common Stock, including the conversion price or exchange rate,
as the case may be (or the manner of calculation thereof);
9. whether such Offered Debt Securities will be issued in the
form of one or more global securities and whether such global
securities are to be issuable in temporary global form or
permanent global form;
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10. if other than U.S. dollars, the currency or currencies
(including composite currencies) in which such Offered Debt
Securities will be denominated and in which the principal of,
and premium and interest, if any, on, such Offered Debt
Securities will be payable;
11. whether, and the terms and conditions on which, the Company or
a Holder may elect that, or the other circumstances under
which, payment of principal of, or premium or interest, if
any, on, such Offered Debt Securities is to be made in a
currency or currencies (including composite currencies) other
than that in which such Offered Debt Securities are
denominated;
12. if the amount of payments of principal of (and premium, if
any) and any interest on the Offered Debt Securities may be
determined with reference to any commodities, currencies or
indices, or values, rates or prices, and the manner in which
such amounts shall be determined;
13. if other than the entire principal amount, the portion of the
principal amount of the Offered Debt Securities that shall be
payable upon acceleration of the stated maturity;
14. in addition to those provided in the Indenture, any additional
means of satisfaction and discharge of the Indenture with
respect to the Offered Debt Securities or any additional
conditions or discharges;
15. any deletions or modifications of or additions to the Events
of Default or the covenants of the Company with respect to the
Offered Debt Securities; and
16. any other specific terms of the Offered Debt Securities.
No service charge will be made for any registration of transfer or exchange
of the Debt Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Substantially all of the assets of the Company are owned by Subsidiaries.
Therefore, the Company's rights and the rights of its creditors, including the
Holders of Debt Securities, to participate in the assets of any Subsidiary upon
the Subsidiary's liquidation or recapitalization, will be subject to the prior
claims of such Subsidiary's creditors.
Offered Debt Securities may be sold at a discount (which may be
substantial) below their stated principal amount bearing no interest or
interest at a rate that at the time of issuance is below market rates. Any
material United States federal income tax consequences and other special
considerations applicable thereto will be described in the Prospectus
Supplement relating to any such Offered Debt Securities.
If any of the Offered Debt Securities are sold for any foreign currency or
currency unit or if the principal of, or premium or interest, if any, on, any
of the Offered Debt Securities is payable in any foreign currency or currency
unit, the restrictions, elections, tax consequences, specific terms and other
information with respect to such Offered Debt Securities and such foreign
currency or currency unit will be set forth in the Prospectus Supplement
relating thereto.
Senior and Subordinated Debt Securities
The Senior Debt Securities will be direct, unsecured obligations of the
Company, ranking on a parity with all other unsecured and unsubordinated
indebtedness of the Company. To the extent provided in the Prospectus
Supplement relating thereto, the Company may be required to secure Senior Debt
Securities equally and ratably with other indebtedness with respect to which
the Company elects or is required to provide security. The Subordinated Debt
Securities will be unsecured and will be subordinated and junior to all "Senior
Indebtedness" (which for this purpose includes any Senior Debt Securities) to
the extent set forth in the applicable supplemental Indenture and the
Prospectus Supplement relating to such series.
The Subordinated Debt Securities will be direct, unsecured obligations of
the Company. The obligations of the Company pursuant to the Subordinated Debt
Securities will be subordinate in right of payment to the extent set forth in
the Indenture and the applicable supplemental Indenture to all Senior
Indebtedness (including all Senior Debt Securities) (in each case as defined in
the applicable supplemental Indenture). Except to the extent otherwise set
forth in a Prospectus Supplement, the Indenture does not contain any
restriction on the amount of Senior Indebtedness which the Company may incur.
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The terms of the subordination of a series of Subordinated Debt Securities,
together with the definition of Senior Indebtedness related thereto, will be as
set forth in the applicable supplemental Indenture and the Prospectus
Supplement relating to such series.
The Subordinated Debt Securities will not be subordinated to indebtedness
of the Company that is not Senior Indebtedness, and the creditors of the
Company who do not hold Senior Indebtedness will not benefit from the
subordination provisions described herein. In the event of the bankruptcy or
insolvency of the Company before or after maturity of the Subordinated Debt
Securities, such other creditors would rank pari passu with holders of the
Subordinated Debt Securities, subject, however, to the broad equity powers of
the Federal bankruptcy court pursuant to which such court may, among other
things, reclassify the claims of any series of Subordinated Debt Securities
into a class of claims having a different relative priority with respect to the
claims of such other creditors or any other claims against the Company.
Events of Default
Unless otherwise provided with respect to any series of Debt Securities,
the following are Events of Default under the Indenture with respect to the
Debt Securities of such series issued under such Indenture: (i) failure to pay
principal of (or premium, if any, on) any Debt Security of such series when
due; (ii) failure to pay any interest on any Debt Security of such series when
due, continued for 30 days; (iii) failure to deposit any mandatory sinking fund
payment, when due, in respect of the Debt Securities of such series, continued
for 30 days; (iv) failure to perform any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture for the benefit of a
series of Debt Securities other than such series), continued for 90 days after
written notice as provided in the Indenture; (v) certain events of bankruptcy,
insolvency or reorganization; and (vi) any other Event of Default as may be
specified with respect to Debt Securities of such series. If an Event of
Default with respect to any outstanding series of Debt Securities occurs and is
continuing, either the Trustee or the Holders of at least 25% in principal
amount of the outstanding Debt Securities of such series (in the case of an
Event of Default described in clause (i), (ii), (iii) or (vi) above) or at
least 25% in principal amount of all outstanding Debt Securities under the
Indenture (in the case of other Events of Default) may declare the principal
amount of all the Debt Securities of the applicable series (or of all
outstanding Debt Securities under the Indenture, as the case may be) to be due
and payable immediately. At any time after a declaration of acceleration has
been made, but before a judgment has been obtained, the Holders of a majority
in principal amount of the outstanding Debt Securities of such series (or of
all outstanding Debt Securities under the applicable Indenture, as the case may
be) may, under certain circumstances, rescind and annul such declaration of
acceleration. Depending on the terms of other indebtedness of the Company
outstanding from time to time, an Event of Default under the Indenture may give
rise to cross defaults on such other indebtedness of the Company.
The Indenture provides that, within 90 days after the occurrence of a
default in respect of any series of Debt Securities, the Trustee will give to
the Holders of the Debt Securities of such series notice of all uncured and
unwaived defaults known to it; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or any interest
on, or any sinking fund installment with respect to, any Debt Securities of
such series, the Trustee will be protected in withholding such notice if it in
good faith determines that the withholding of such notice is in the interest of
the Holders of the Debt Securities of such series; and provided further, that
such notice shall not be given until at least 30 days after the occurrence of a
default in the performance or breach of any covenant or warranty of the Company
under such Indenture other than for the payment of the principal of (or
premium, if any) or any interest on, or any sinking fund installment with
respect to, any Debt Securities of such series. For the purpose of this
provision, "default" with respect to Debt Securities of any series means any
event that is, or after notice or lapse of time, or both, would become, an
Event of Default with respect to the Debt Securities of such series.
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the Indenture) have the right, subject to certain limitations, 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 such series (or of all
outstanding Debt Securities under the Indenture). The Indenture provides that
in case an Event of Default shall occur and be continuing, the Trustee shall
exercise such of its rights and powers under the applicable Indenture and use
the same degree of care and skill in its exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
Subject to such provisions, the Trustee will be under no obligation to exercise
any of its rights or powers under the Indenture at the request of any of the
Holders of the Debt Securities unless they shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request.
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the Indenture) may on behalf of the Holders of all Debt Securities of
such series (or of all outstanding Debt Securities under the Indenture) waive
any past default under the Indenture, except a default in the payment of the
principal of (or
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premium, if any) or interest on any Debt Security or in respect of a provision
that under the applicable Indenture cannot be modified or amended without the
consent of the Holder of each outstanding Debt Security affected. The Holders
of a majority in principal amount of the outstanding Debt Securities affected
thereby may on behalf of the Holders of all such Debt Securities waive
compliance by the Company with certain restrictive provisions of the Indenture.
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
Modification
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of a majority in principal
amount of the outstanding Debt Securities under the Indenture affected thereby;
provided, however, that no such modification or amendment may, without the
consent of the Holder of each outstanding Debt Security affected thereby, (i)
change the stated maturity date of the principal of, or any installment of
principal of or interest on, any Debt Security, (ii) reduce the principal
amount of, or the premium (if any) or interest on, any Debt Security, (iii)
change the place or currency or currencies (including composite currencies) of
payment of principal of, or premium (if any) or interest on, any Debt Security,
(iv) impair the right to institute suit for the enforcement of any payment on
or with respect to any Debt Security or (v) reduce the percentage in principal
amount of outstanding Debt Securities, the consent of the Holders of which is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults.
The Indenture provides that the Company and the Trustee may, without the
consent of any Holders of Debt Securities, enter into supplemental indentures
for the purposes, among other things, of adding to the Company's covenants,
adding additional Events of Default, establishing the form or terms of Debt
Securities or curing ambiguities or inconsistencies in the Indenture, provided
that such action to cure ambiguities or inconsistencies shall not adversely
affect the interests of the Holders of the Debt Securities in any material
respect.
Consolidation, Merger and Sale of Assets
The Company, without the consent of any Holders of outstanding Debt
Securities, may consolidate with or merge into, or convey, transfer or lease
its assets substantially as an entirety to, any Person, provided that (i) the
Person formed by such consolidation or into which the Company is merged or that
acquires or leases the assets of the Company substantially as an entirety is a
Person that expressly assumes by supplemental indenture the Company's
obligations on the Debt Securities and under the Indenture, (ii) after giving
effect to the transaction, no Event of Default and no event that, after notice
or lapse of time or both, would become an Event of Default shall have occurred
and be continuing, and (iii) certain other conditions are met. Upon compliance
with these provisions by a successor Person, the Company will (except in the
case of a lease) be relieved of its obligations under the Indenture and the
Debt Securities.
Discharge and Defeasance
The Company may terminate its obligations under the Indenture, other than
its obligation to pay the principal of (and premium, if any) and interest on
the Debt Securities of any series and certain other obligations, provided that
it (i) irrevocably deposits, or causes to be irrevocably deposited with the
Trustee as trust funds, money or U.S. Government Obligations, maturing as to
principal and interest sufficient to pay the principal of, any interest on, and
any mandatory sinking funds in respect of, all outstanding Debt Securities of
such series on the stated maturity of such payments or on any redemption date
and (ii) complies with any additional conditions specified to be applicable
with respect to the covenant defeasance of Debt Securities of such series.
The terms of any series of Debt Securities may also provide for legal
defeasance pursuant to the Indenture. In such case, if the Company (i)
irrevocably deposits or causes to be irrevocably deposited money or U.S.
Government Obligations as described above, (ii) makes a request to the Trustee
to be discharged from its obligations on the Debt Securities of such series and
(iii) complies with any additional conditions specified to be applicable with
respect to legal defeasance of Debt Securities of such series, then the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Debt Securities of such series, the obligations of the Company
under the Indenture and the Debt Securities of such series to pay the principal
of (and premium, if any) and interest on the Debt Securities of such series
shall cease, terminate and be completely discharged, and the Holders thereof
shall thereafter be entitled only to payment out of the money or U.S.
Government Obligations deposited with the Trustee as aforesaid, unless the
Company's obligations are revived and reinstated because the Trustee is unable
to apply such trust fund by reason of any legal proceeding, order or judgment.
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"U.S. Government Obligations" is defined in the Indenture as direct
noncallable obligations of, or noncallable obligations the payment of principal
of and interest on which is guaranteed by, the United States of America, or to
the payment of which obligations or guarantees the full faith and credit of the
United States of America is pledged, or beneficial interests in a trust the
corpus of which consists exclusively of money or such obligations or a
combination thereof.
Form, Exchange, Registration and Transfer
Debt Securities are issuable in definitive form as Registered Debt
Securities. Reference is made to the Prospectus Supplement for the terms
relating to the form, exchange, registration and transfer of Debt Securities
issuable in temporary or permanent global forms.
Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations.
Registered Debt Securities may be presented for registration of transfer
(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 the
Company for such purpose with respect to any series of Debt Securities and
referred to in an applicable Prospectus Supplement, without service charge and
upon payment of any taxes and other governmental charges as described in the
Indenture. 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. Except to
the extent otherwise indicated in the applicable Prospectus Supplement, the
Company will appoint the Trustee as Security Registrar. If a Prospectus
Supplement refers to any transfer agents (in addition to the Security
Registrar) initially designated by the Company with respect to any series of
Debt Securities, the Company may at any time rescind the designation of any
such transfer agent or approve a change in the location through which any such
transfer agent acts, except that, if Debt Securities of a series are issuable
solely as Registered Debt Securities, the Company will be required to maintain
a transfer agent in each Place of Payment for such series. The Company may at
any time designate additional transfer agents with respect to any series of
Debt Securities.
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange Registered Debt Securities
of any series during a period beginning at the opening of business 15 days
prior to the selection of Debt Securities of that series for redemption and
ending on the close of business on the day of mailing of the relevant notice of
redemption or (ii) register the transfer of or exchange any Registered Debt
Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Debt Security being redeemed in part.
Payment and Paying Agents
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Debt Securities will
be made in the designated currency or currency unit at the office of such
Paying Agent or Paying Agents as the Company may designate from time to time,
except that, at the option of the Company, payment of any interest may be made
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register. Unless otherwise indicated in an
applicable Prospectus Supplement, payment of any installment of interest on
Registered Debt Securities will be made to the Person in whose name such
Registered Debt Security is registered at the close of business on the Regular
Record Date for such interest.
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in New York, New York will be designated
as a Paying Agent for the Company for payments with respect to Debt Securities
issuable solely as Registered Debt Securities. The Company 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 the Company will be required to maintain a Paying Agent in each
Place of Payment for such series.
All monies paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security that remain
unclaimed at the end of three years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company, and the Holder of such Debt Security or any coupon will
thereafter look only to the Company for payment thereof.
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Book-entry Debt Securities
The Debt Securities of a series may be issued, in whole or in part, in the
form of one or more global Debt Securities that would be deposited with a
depositary or its nominee identified in the applicable Prospectus Supplement.
Global Debt Securities may be issued in either temporary or permanent form. The
specific terms of any depositary arrangement with respect to any portion of a
series of Debt Securities and the rights of, and limitations on, owners of
beneficial interests in any such global Debt Security representing all or a
portion of a series of Debt Securities will be described in the applicable
Prospectus Supplement.
Meetings
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series. A meeting may be called at any time by the
Trustee, and also, upon request, by the Company or the Holders of at least 10%
in principal amount of the Outstanding Debt Securities of such series, in any
such case upon notice given as described under "Notices" below. Except for any
consent that must be given by the Holder of each Outstanding Debt Security
affected thereby, as described under "Modification" above, any resolution
presented at a meeting or adjourned meeting at which a quorum is present may be
adopted by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series; provided, however,
that, except for any consent that must be given by the Holder of each
Outstanding Debt Security affected thereby, as described under "Modification"
above, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that may be made, given or
taken by the Holders of a specified percentage, which is less than a majority
in principal amount of the Outstanding Debt Securities of a series, may be
adopted at a meeting or adjourned meeting duly reconvened at which a quorum is
present by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Debt Securities of that series. Subject to
the proviso set forth above, any resolution passed or decision taken at any
meeting of Holders of Debt Securities of any series duly held in accordance
with the Indenture will be binding on all Holders of Debt Securities of that
series and any related coupons. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be Persons holding or
representing a majority in principal amount of the Outstanding Debt Securities
of a series.
Governing Law
The Indenture and the Debt Securities will be governed by and construed in
accordance with the laws of the State of New York.
Notices
Notices to Holders of Registered Debt Securities will be given by mail to
the addresses of such Holders as they appear in the Security Register.
The Trustee
The Trustee for each series of Debt Securities will be identified in the
applicable Prospectus Supplement. The Indenture contains certain limitations
on the right of the Trustee, as a creditor of the Company, to obtain payment of
claims in certain cases and to realize on certain property received with
respect to any such claims, as security or otherwise. The Trustee is permitted
to engage in other transactions, except that, if it acquires any conflicting
interest (as defined), it must eliminate such conflict or resign.
The Trustee may from time to time serve as a depositary of funds of, make
loans to and perform other services for the Company.
DESCRIPTION OF EQUITY SECURITIES
GENERAL
The authorized capital stock of the Company consists of 250,000,000 shares
of Common Stock, par value $.10 per share, 15,000,000 shares of Preferred
Stock, par value $1.00 per share and 5,000,000 shares of First Preferred Stock,
par value $1.00 per share. On October 13, 1997, 142,273,574 shares of Common
Stock were issued and outstanding and no shares of Preferred Stock or First
Preferred Stock were outstanding. All issued and outstanding shares of Common
Stock are fully-paid and non-assessable.
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The Company's Amended and Restated Certificate of Incorporation provides
that any dividend on shares of First Preferred Stock shall be paid, or declared
and set apart for payment, before any dividend shall be paid, or declared and
set apart for payment, on shares of Common Stock or any subordinate series of
Preferred Stock. In addition, the Amended and Restated Certificate of
Incorporation provides that the Preferred Stock shall generally be subordinate
to the First Preferred Stock. However, the Board of Directors may grant
powers, preferences and rights to any series of Preferred Stock which are on
parity with, or senior to, the powers, preferences and rights of any series of
First Preferred Stock, provided that such series or class of First Preferred
Stock shall have approved of such powers, preferences and rights by an
applicable vote.
On February 21, 1995, the Company filed a Certificate of Designations
creating a series of 1,250,000 shares of Preferred Stock designated as Series A
Junior Participating Preferred Stock (the "Series A Junior Participating
Preferred Stock") in connection with establishing a stockholder rights plan.
See "Certain Provisions of Certificate of Incorporation, Bylaws and
Statute--Stockholder Rights Plan."
PREFERRED STOCK
Terms
The following description of the Preferred Stock summarizes certain general
terms and provisions of each series of Preferred Stock to which any Prospectus
Supplement may relate. Certain other terms of a particular series of Preferred
Stock will be summarized in the Prospectus Supplement relating to such series.
The summaries of the terms of the Preferred Stock below and in any Prospectus
Supplement do not, and will not, purport to be complete and are subject to, and
qualified in their entirety by reference to, the Company's Amended and Restated
Certificate of Incorporation (as it may be amended from time to time) and the
certificate of designations establishing a series of Preferred Stock (each, a
"Certificate of Designations"), which will be filed with the Commission as an
exhibit to or incorporated by reference in the Registration Statement of which
this Prospectus forms a part, at or prior to the time of the issuance of such
series of Preferred Stock.
The Board of Directors is authorized (without further stockholder action)
to provide for issuance of the Preferred Stock of the Company from time to
time, in one or more series, and to fix the dividend rate, conversion or
exchange rights, voting rights, terms of redemption, redemption price or
prices, liquidation preferences and qualifications, limitations and
restrictions thereof with respect to each series.
An applicable Prospectus Supplement will set forth or describe other
specific terms regarding each series of Preferred Stock offered thereby,
including, without limitation:
1. the distinctive title of such Preferred Stock;
2. the number of shares of such Preferred Stock offered, the liquidation
preference per share and the initial offering price of such Preferred
Stock;
3. the dividend rate, period and/or payment date applicable to such
Preferred Stock;
4. the date from which dividends on such Preferred Stock shall
accumulate, if applicable;
5. whether the shares of Preferred Stock may be issued at a discount
below their liquidation preference ("Original Issue Discount
Preferred Stock"), and material United States federal income tax,
accounting and other considerations applicable to Original Issue
Discount Preferred Stock;
6. whether the dividends, if any, on the Preferred Stock are to be
payable, at the election of the Company or a holder thereof, in cash
or in additional shares of Preferred Stock ("PIK Preferred Stock")
and the period or periods within which, and the terms and conditions
upon which, such election may be made, and material United States
federal income tax, accounting and other considerations applicable to
such PIK Preferred Stock;
7. the provision for a sinking fund, if any, for such Preferred Stock;
8. the provision for redemption, if applicable, of such Preferred Stock;
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9. any listing of such Preferred Stock on any securities exchange or any
quotation on an automated quotation system;
10. the terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock or exchangeable for Debt
Securities, including the conversion price or exchange rate, as the
case may be (or the manner of calculation thereof);
11. a discussion of federal tax considerations applicable to such
Preferred Stock;
12. the relative ranking and preference of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company;
13. any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with a series of Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company;
14. the voting powers, if any, of such Preferred Stock, in addition to
those set forth below; and
15. any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
The Preferred Stock will have no preemptive rights. All of the Preferred
Stock, upon payment in full therefor, will be fully-paid and non-assessable.
Dividends
Unless otherwise set forth in an applicable Prospectus Supplement, the
holders of the Preferred Stock of each series shall be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of the
funds of the Company legally available therefor, dividends at such rate and on
such dates and on such terms as shall be set forth in the Prospectus Supplement
relating to such series. Different series of the Preferred Stock may be
entitled to dividends at different rates or based upon different methods of
determination. Such rate may be fixed or variable or both. Each such dividend
will be payable to the holders of record as they appear on the stock books of
the Company on such record dates as will be fixed by the Board of Directors of
the Company or a duly authorized committee thereof. Dividends on any series of
the Preferred Stock may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating thereto.
Ranking
The Preferred Stock will rank senior in right of payment to the Common
Stock, and the First Preferred Stock (unless its terms otherwise provide) will
rank senior in right of payment to the Preferred Stock, as to dividends and
upon liquidation, dissolution or winding up of the Company, except as set forth
in the Prospectus Supplement relating thereto.
Conversion
The terms and conditions, if any, upon which any series of Preferred Stock
will be convertible into Common Stock will be set forth in the Prospectus
Supplement relating thereto. Such terms will include the conversion price (or
manner of calculation thereof), the conversion period, provisions as to whether
conversion will be at the option of the holders of such series of Preferred
Stock or at the option of the Company, the events requiring an adjustment of
the conversion price and provisions affecting conversion in the event of the
redemption of such series of Preferred Stock.
Exchange
The Prospectus Supplement may provide that the Company may, at its option,
exchange, in whole or in part, any series of Preferred Stock for Debt
Securities. The terms, notice and procedures for any such exchange will be set
forth in the applicable Prospectus Supplement.
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Voting Rights
Unless otherwise provided in the applicable Prospectus Supplement, holders
of record of each series of Preferred Stock will have no voting rights, except
as required by law and as provided in the applicable Certificate of
Designations. However, if any series of Preferred Stock has voting rights,
such Preferred Stock shall not have the right to vote as a separate class on
any matter, except as provided by law.
Redemption Provisions
The Preferred Stock of each series will have such optional or mandatory
redemption terms, if any, as shall be set forth in the applicable Prospectus
Supplement.
Certain Covenants
The applicable Prospectus Supplement will describe any material covenants
in respect of any series of Preferred Stock.
Transfer Agent and Registrar
The transfer agent, registrar and dividend disbursement agent for the
Preferred Stock will be designated in the applicable Prospectus Supplement. The
registrar for shares of Preferred Stock will send notices to stockholders of
any meetings at which holders of the Preferred Stock have the right to elect
directors of the Company or to vote on any other matter.
COMMON STOCK
Dividends
The Company paid no dividends on its Common Stock until September 1997. In
September 1997, the Company paid a cash dividend of $.025 per share on its
shares of Common Stock. The Company currently intends to continue to pay such
dividend in the foreseeable future. However, the final determination of the
timing, amount and payment of dividends on the Common Stock is at the
discretion of the Board of Directors and will depend on, among other things,
the Company's profitability, liquidity, financial condition, and capital
requirements.
Voting Rights
Each share of Common Stock is entitled to one vote.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is American Stock
Transfer and Trust Company.
The foregoing descriptions of the Preferred Stock and Common Stock are
summaries, and reference is herein made to the detailed provisions of the
Company's Amended and Restated Certificate of Incorporation (including, without
limitation, the Certificate of Designations relating to any series of Preferred
Stock filed hereafter and incorporated by reference herein) and the Company's
Bylaws, copies of which are incorporated by reference herein.
CERTAIN PROVISIONS OF CERTIFICATE OF INCORPORATION, BYLAWS AND STATUTE
LIMITATION OF DIRECTORS' LIABILITY AND INDEMNIFICATION
The General Corporation Law of the State of Delaware (the "DGCL") provides
that a corporation may limit the personal liability of each director to the
corporation or its stockholders for monetary damages except for liability (i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases and (iv)
for any transaction from which the director derives an improper personal
benefit. The Amended and Restated Certificate of Incorporation provides for the
elimination and limitation of the personal liability of directors of the
Company for monetary damages except for
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situations described in (i) through (iv) above. The effect of this provision
is to eliminate the rights of the Company and its stockholders (through
stockholders' derivative suits on behalf of the Company) to recover monetary
damages against a director for breach of the fiduciary duty of care as a
director (including breaches resulting from negligent or grossly negligent
behavior) except in the situations described in clauses (i) through (iv) above.
This provision does not limit or eliminate the rights of the Company or any
stockholder to seek non-monetary relief such as an injunction or rescission in
the event of a breach of a director's duty of care.
Pursuant to Section 145 of the DGCL, the Company generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they
are, or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the Company, and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The statute also expressly provides that the power
to indemnify authorized thereby is not exclusive of any rights granted under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
The Company's Amended and Restated Certificate of Incorporation provides,
in general, that the Company must indemnify its officers and directors under
certain of the circumstances defined in Section 145 of the DGCL. In addition,
the Amended and Restated Certificate of Incorporation provides that no
directors of the Company will be liable to the Company or its stockholders for
monetary damages for any breach of such director's fiduciary duties, with
certain exceptions.
The Bylaws provide that the Company shall indemnify its officers,
directors, employees, and agents to the full extent permitted by the DGCL.
The Company has entered into an indemnity agreement with each officer and
director of the Company that provides for indemnification to the fullest extent
of applicable law for any threatened, pending or completed action, suit or
proceeding arising out of the fact that such person was serving as an officer
or director of the Company. In addition, the agreements provide for the
advancement of expenses for defending against such claims upon such person's
undertaking to repay such advances if it is determined that he is in fact not
entitled to indemnification.
SECTION 203 OF THE DGCL
The Company is subject to the "business combination" statute of the DGCL,
an anti-takeover law enacted in 1988. In general, Section 203 of the DGCL
("Section 203") prohibits a publicly-held Delaware corporation from engaging in
a "business combination" with an "interested stockholder," for a period of
three years after the date of the transaction in which a person became an
"interested stockholder," unless (i) prior to such date the board of directors
of the corporation approved either the "business combination" or the
transaction which resulted in the stockholder becoming an "interested
stockholder," (ii) upon consummation of the transaction which resulted in the
stockholder becoming an "interested stockholder," the "interested stockholder"
owned at least 85% of the voting stock of the corporation outstanding at the
time the transaction commenced, excluding for purposes of determining the
number of shares outstanding those shares owned by (a) persons who are
directors and also officers and (b) employee stock plans in which employee
participants do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange offer, or
(iii) on or subsequent to such date the "business combination" is approved by
the board of directors and authorized at an annual or special meeting of
stockholders by the affirmative vote of at least 66 2/3% of the outstanding
voting stock which is not owned by the "interested stockholder." A "business
combination" includes mergers, stock or asset sales and other transactions
resulting in a financial benefit to the "interested stockholders." An
"interested stockholder" is a person who, together with affiliates and
associates, owns (or within three years, did own) 15% or more of the
corporation's voting stock. Although Section 203 permits the Company to elect
not to be governed by its provisions, the Company to date has not made this
election. As a result of the application of Section 203, potential acquirors of
the Company may be discouraged from attempting to effect an acquisition
transaction with the Company, thereby possibly depriving holders of the
Company's securities of certain opportunities to sell or otherwise dispose of
such securities at above-market prices pursuant to such transactions.
RESTRICTIONS ON ALIEN OWNERSHIP
The Company's Amended and Restated Certificate of Incorporation contains
certain provisions to limit ownership and control of shares of any class of
capital stock of the Company by certain non-U.S. citizens in order to permit
the Company to hold, obtain or reinstate a license or franchise from a
governmental agency necessary to conduct its business as an owner and operator
of U.S.-flag vessels. The Company's Amended and Restated Certificate of
Incorporation restricts the transfer of shares of Common Stock when such
transfer would result in the ownership or control by one or more non-U.S.
citizens of an aggregate percentage of the shares of
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Common Stock in excess of a specified percentage and under certain
circumstances, provides that certain capital stock owned by non-U.S. citizens
may not be permitted to vote or receive dividends.
CLASSIFIED BOARD OF DIRECTORS
The Company's Amended and Restated Certificate of Incorporation provides
that the Board of Directors of the Company is divided into three classes of
directors. Each class of directors serves a staggered three-year term. The
classified board may make it more difficult for any stockholder who is
attempting to acquire the Company, including a stockholder holding a majority
of shares, to succeed. Such a stockholder will be unable to force immediate
changes in the composition of a majority of the Board of Directors, since the
terms of approximately one-third of the incumbent directors would expire each
year, and at least two annual meetings would be required for stockholders to
change a majority of the Board of Directors.
STOCKHOLDER RIGHTS PLAN
On February 21, 1995, the Company's Board of Directors declared a dividend
of one preferred share purchase right (a "Right") for each outstanding share of
Common Stock. The dividend was payable on March 6, 1995 (the "Rights Record
Date") to the stockholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one-hundredth of a share of
Series A Junior Participating Preferred Stock of the Company at a price of
$250.00 per one-hundredth of a share of Series A Junior Participating Preferred
Stock (the "Purchase Price"), subject to adjustment. The Rights are described
in the Company's Registration Statement on Form 8-A filed with the Commission
on February 23, 1995, as amended by Form 8-A/A-1 filed with the Commission on
March 4, 1997, which are incorporated herein by reference.
PLAN OF DISTRIBUTION
The Company may sell Securities to one or more underwriters for public
offering and sale, and also may sell Securities directly to investors or to
other purchasers or through dealers or agents. Any such underwriter, dealer or
agent involved in the offer and sale of the Securities will be named in an
applicable Prospectus Supplement.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Sales of Common Stock offered
hereby may be effected from time to time in one or more transactions on the New
York Stock Exchange or in negotiated transactions or a combination of such
methods of sale.
In connection with distributions of Common Stock or otherwise, the Company
may enter into hedging transactions with broker-dealers in connection with
which such broker-dealers may sell Common Stock registered hereunder in the
course of hedging through short sales of the positions they assume with the
Company.
In connection with the sale of Securities, underwriters, dealers or agents
may receive compensation from the Company or from purchasers of Securities for
whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents who participate
in the distribution of Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on
the resale of Securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act. Any such underwriter, dealer or agent
will be identified, and any such compensation received from the Company will be
described, in the Prospectus Supplement. Unless otherwise indicated in a
Prospectus Supplement, an agent will be acting on a best efforts basis and a
dealer will purchase Securities as a principal, and may then resell such
Securities at varying prices to be determined by the dealer.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company against and contribution toward
certain civil liabilities, including liabilities under the Securities Act, and
to reimbursement by the Company for certain expenses.
If so indicated in a Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase Securities from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject to only
15
17
those conditions set forth in the Prospectus Supplement, and the Prospectus
Supplement will set forth the commission payable for solicitation of such
offers.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with and perform services for the Company in the
ordinary course of business.
The Securities may or may not be listed on a national securities exchange
or quoted on an automated quotation system (other than the Common Stock, which
is listed on the New York Stock Exchange). Any Common Stock sold pursuant to a
Prospectus Supplement will be listed on the New York Stock Exchange, subject to
official notice of issuance. Any underwriters to whom Securities are sold by
the Company for public offering and sale may make a market in such Securities,
but such underwriters will not be obligated to do so and may discontinue any
market-making activities at any time without notice. No assurances can be given
that there will be an active trading market for the Securities.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Baker & McKenzie, Dallas, Texas.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K for the year ended December 31, 1996, have been
so incorporated in reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
With respect to the unaudited consolidated financial information of the
Company for the six-month periods ended June 30, 1997 and 1996 and for the
three-month periods ended March 31, 1997 and 1996 incorporated by reference
in this Prospectus, Price Waterhouse LLP reported that they have applied
limited procedures in accordance with professional standards for a review of
such information. However, their separate reports dated July 28, 1997 and
April 28, 1997 incorporated by reference herein, state that they did not audit
and they do not express an opinion on that unaudited consolidated financial
information. Price Waterhouse LLP has not carried out any significant or
additional audit tests beyond those which would have been necessary if their
reports had not been included. Accordingly, the degree of reliance on their
reports on such information should be restricted in light of the limited nature
of the review procedures applied. Price Waterhouse LLP is not subject to the
liability provisions of section 11 of the Securities Act of 1933 for their
reports on the unaudited consolidated financial information because those
reports are not a "report" or a "part" of the registration statement prepared
or certified by Price Waterhouse LLP within the meaning of sections 7 and 11 of
the Securities Act of 1933.
16
18
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR ANY OF THE $500,000,000
UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR THE SOLICITATION OF ANY OFFER TO
BUY ANY SECURITY OTHER THAN THE SECURITIES OFFERED [ENSCO LOGO]
BY THIS PROSPECTUS, NOR DOES IT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION
IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF. DEBT SECURITIES
PREFERRED STOCK
AND COMMON STOCK
TABLE OF CONTENTS
Page
----
Available Information . . . . . . . . . . . . . . 2
Incorporation by Reference . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . 4 P R O S P E C T U S
Use of Proceeds . . . . . . . . . . . . . . . . . 4
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges
and Preferred Stock Dividends . . . . . . . 4 , 1997
Description of Debt Securities . . . . . . . . . 4
Description of Equity Securities . . . . . . . . 10
Certain Provisions of Certificate of
Incorporation, Bylaws and Statute . . . . . 13
Plan of Distribution . . . . . . . . . . . . . . 15
Legal Matters . . . . . . . . . . . . . . . . . . 16
Experts . . . . . . . . . . . . . . . . . . . . . 16
17
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following sets forth the best estimate of the Company as to its
anticipated expenses and costs (other than underwriting discounts and
commissions) expected to be incurred in connection with the issuance and
distribution of the securities registered hereby (except for the Commission
registration fee, all amounts are estimates):
Commission Registration Fee . . . . . . . . . . . . . . . . . . . $151,516
Printing and Engraving Expenses . . . . . . . . . . . . . . . . . 150,000
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 200,000
Accounting Fees and Expenses . . . . . . . . . . . . . . . . . . . 150,000
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . . . . . 35,000
Trustee's Fees and Expenses . . . . . . . . . . . . . . . . . . . 30,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 183,484
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $900,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") provides generally and in pertinent part that a Delaware
corporation may indemnify its directors and officers against expenses,
judgments, fines and settlements actually and reasonably incurred by them in
connection with any civil, criminal, administrative or investigative suit or
action except actions by or in the right of the corporation if, in connection
with the matters in issue, they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and in connection with any criminal suit or proceeding, if in
connection with the matters in issue, they had no reasonable cause to believe
their conduct was unlawful. Section 145 further provides that in connection
with the defense or settlement of any action by or in the right of the
corporation, a Delaware corporation may indemnify its directors and officers
against expenses actually and reasonably incurred by them if, in connection
with the matters in issue, they acted in good faith, in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made with respect to any
claim, issue or matter as to which such person has been adjudged liable for
negligence or misconduct unless the Court of Chancery or the court in which
such action or suit to be brought approves such indemnification. Section 145
further permits a Delaware corporation to grant its directors and officers
additional rights of indemnification through bylaw provisions and otherwise,
and to purchase indemnity insurance on behalf of its directors and officers.
Article Fifteen of the Company's Amended and Restated Certificate of
Incorporation provides, in general, that the Company must indemnify its
directors and officers under certain of the circumstances defined in Section
145. In addition, Article Fifteen provides that no director of the Company
will be personally liable to the Company or its stockholders for monetary
damages for any breach of such director's fiduciary duty, with certain
exceptions. Article Fifteen further allows the Company to purchase and
maintain insurance on behalf of its directors, officers, employees or agents
and to provide for such indemnification by means of a trust fund, security
interest, letter of credit, surety bond, contract and/or similar arrangement.
The Bylaws provide that the Company shall indemnify its officers, directors,
employees, and agents to the full extent permitted by the General Corporation
Law of the State of Delaware. The directors and officers of the Company and
its subsidiaries are insured (subject to certain exceptions and deductions)
against liabilities which they may incur in their capacity as such, including
liabilities under the Securities Act of 1933, as amended, under a liability
insurance policy carried by the Company. The Company has also entered into
agreements with its officers and directors which essentially provide that the
Company will indemnify the officers and directors to the fullest extent of
applicable law and for the advancement of expenses.
20
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
*1.1 Form of Underwriting Agreement
*4.1 Form of Certificate of Designations of Preferred Stock
4.2 Form of Indenture
*4.3 Form of Debt Securities
*5.1 Legal Opinion of Baker & McKenzie
12.1 Statement regarding computation of ratios
15.1 Letter regarding unaudited interim financial information
*23.1 Consent of Baker & McKenzie (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Powers of Attorney (included on page II-4)
*25.1 Statement of eligibility of trustee on Form T-1
_________________
* To be filed by amendment or by a Current Report on Form 8-K pursuant to Item
601 of Regulation S-K.
ITEM 17. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the 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 by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question 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.
(b) The undersigned 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 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) The 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 purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be determined 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) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
II-2
21
(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 and 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 (d)(1)(i) and (d)(1)(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
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.
(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 in
accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Trust Indenture Act.
II-3
22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on the 14th day of October,
1997.
ENSCO INTERNATIONAL INCORPORATED
By: /s/ Carl F. Thorne
------------------------------------
Carl F. Thorne,
Chairman, Chief Executive Officer
and President
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates stated. Each person whose signature to this
Registration Statement appears below hereby appoints Carl F. Thorne, Richard A.
Wilson and C. Christopher Gaut, jointly and severally, as his
attorneys-in-fact, to sign on his behalf, individually and in the capacities
stated below, and to file (i) any and all amendments and post-effective
amendments to this Registration Statement and (ii) any registration statement
relating to the same offering pursuant to Rule 462(b) under the Securities Act
of 1933, which amendment or amendments or registration statement may make such
changes and additions as such attorney-in-fact may deem necessary or
appropriate.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Carl F. Thorne Chairman, Chief Executive Officer, President
-------------------------------------- (Principal Executive Officer) October 14, 1997
CARL F. THORNE
/s/ Richard A. Wilson Senior Vice President,
-------------------------------------- Chief Operating Officer and Director October 14, 1997
RICHARD A. WILSON
/s/ C. Christopher Gaut Vice President-Finance and
-------------------------------------- Chief Financial Officer (Principal Financial October 14, 1997
C. CHRISTOPHER GAUT Officer)
/s/ H.E. Malone Vice President-Controller and Chief Accounting
-------------------------------------- Officer (Principal Accounting Officer) October 14, 1997
H.E. MALONE
/s/ Craig I. Fields Director
--------------------------------------
CRAIG I. FIELDS, Ph.D. October 14, 1997
/s/ Orville D. Gaither, Sr. Director
--------------------------------------
ORVILLE D. GAITHER, SR. October 14, 1997
/s/ Gerald W. Haddock Director
--------------------------------------
GERALD W. HADDOCK October 14, 1997
/s/ Dillard S. Hammett Director
--------------------------------------
DILLARD S. HAMMETT October 14, 1997
/s/ Thomas L. Kelly, II Director
--------------------------------------
THOMAS L. KELLY, II October 14, 1997
/s/ Morton H. Meyerson Director
--------------------------------------
MORTON H. MEYERSON October 14, 1997
II-4
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INDEX TO EXHIBITS
Exhibit
Number Description
------ -----------
*1.1 Form of Underwriting Agreement
*4.1 Form of Certificate of Designations of Preferred Stock
4.2 Form of Indenture
*4.3 Form of Debt Securities
*5.1 Legal Opinion of Baker & McKenzie
12.1 Statement regarding computation of ratios
15.1 Letter regarding unaudited interim financial information
*23.1 Consent of Baker & McKenzie (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Powers of Attorney (included on page II-4)
*25.1 Statement of eligibility of trustee on Form T-1
_________________
* To be filed by amendment or by a Current Report
on Form 8-K pursuant to Item 601 of Regulation
S-K.