REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OAKWOOD HOMES CORPORATION
(Exact Name of Registrant as Specified in its Charter)
NORTH CAROLINA 56-0985879
(State or Other Jurisdiction of Incorporation) (I.R.S. Employer Identification No.)
POST OFFICE BOX 27081
GREENSBORO, N.C. 27425-7081
336/664-2400
(Address, Including Zip code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
-------------------------------
MYLES E. STANDISH
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
OAKWOOD HOMES CORPORATION
POST OFFICE BOX 27081
GREENSBORO, N.C. 27425-7081
336/664-2400
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
---------------------
PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
A. BRADLEY IVES, ESQ. VALERIE FORD JACOB, ESQ.
KENNEDY COVINGTON LOBDELL & HICKMAN, L.L.P. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
NATIONSBANK CORPORATE CENTER ONE NEW YORK PLAZA, 25TH FLOOR
100 NORTH TRYON STREET, 42ND FLOOR NEW YORK, N.Y. 10004-1980
CHARLOTTE, N.C. 28202-4006 212/859-8000
704/331-7400
--------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED
SALE TO THE PUBLIC: From time to time after the
effective date of this Registration Statement.
--------------------------------
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. [ ]
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. [X]
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CALCULATION OF REGISTRATION FEE
============================================ ------------------------------------------ ------------------------------------------
TITLE OF SHARES PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED AGGREGATE REGISTRATION
OFFERING PRICE (1) (2) FEE
============================================ ========================================== ==========================================
Debt Securities $400,000,000 $118,000
============================================ ========================================== ==========================================
(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(o).
(2) In U.S. dollars or the equivalent thereof in foreign currencies, currency
units or 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, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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 FEBRUARY 27, 1998
PROSPECTUS
$400,000,000
OAKWOOD HOMES CORPORATION
DEBT SECURITIES
--------------------
Oakwood Homes Corporation (the "Company") intends to issue, from time
to time in one or more series, its unsecured debt securities (the "Debt
Securities") with an aggregate initial public offering price or purchase price
of up to $400,000,000 or the equivalent thereof in one or more foreign or
composite currencies. The Debt Securities will be offered for sale on terms to
be determined when the agreement to sell is made or at the time of sale, as the
case may be. For each issue of Debt Securities in respect of which this
Prospectus is being delivered, there is an accompanying prospectus supplement
(the "Prospectus Supplement"). The Prospectus Supplement sets forth for each
series the designation, designated currency (which may be U.S. dollars, any
other currency or a composite currency), aggregate principal amount, rate (which
may be fixed, floating or adjustable) or method of calculation of interest, if
any, and dates for payment thereof, premium, if any, maturity, authorized
denominations, any subordination terms, initial price, any exchangeability,
redemption or prepayment rights at the option of the Company or the holder, any
covenants or events of default that are in addition to or different from that
described herein, and other special terms of the Debt Securities, together with
the terms of the offering of the Debt Securities and the net proceeds to the
Company from the sale thereof. In the event of the issuance of Debt Securities
at original issue discount, the aggregate principal amount of Debt Securities
offered hereby will be a higher amount, provided that the total price at which
Debt Securities are sold to the public pursuant to this Prospectus will not
exceed $400,000,000, or the equivalent thereof in other currencies or composite
currencies. If any agents of the Company or any underwriters are involved in the
sale of any series of Debt Securities in respect of which this Prospectus is
being delivered, the names of such agents or underwriters and any applicable
commissions and discounts are set forth in the Prospectus Supplement.
Unless otherwise specified in a Prospectus Supplement, the Debt
Securities, when issued, will be unsecured and unsubordinated obligations of the
Company and will rank pari passu in right of payment with all other unsecured
and unsubordinated indebtedness of the Company. The Company may (but is not
required to) make application to list one or more series of Debt Securities on
one or more national securities exchanges. Any such application to list the Debt
Securities is described in the Prospectus Supplement related thereto.
--------------------
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 ACCU-
RACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESEN-
TATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The Debt Securities will be sold directly, through agents designated
from time to time, or through underwriters or dealers. The names of any
underwriters or agents of the Company involved in the sale of the Debt
Securities in respect of which this Prospectus is being delivered and any
applicable commissions or discounts will be set forth in the applicable
Prospectus Supplement.
The date of this Prospectus is February 27, 1998.
CERTAIN PERSONS, INCLUDING ANY UNDERWRITERS, PARTICIPATING IN THE
OFFERING MAY ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT
THE PRICE OF THE DEBT SECURITIES. SUCH TRANSACTIONS MAY INCLUDE STABILIZING AND
THE PURCHASE OF THE DEBT SECURITIES TO COVER SHORT POSITIONS. FOR A DESCRIPTION
OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION."
--------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549; and at the regional offices of the Commission at 7 World
Trade Center, Suite 1300, New York, New York 10048, and Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained at prescribed rates from the Public Reference Section
of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission maintains a Web site that contains reports, proxy and information
statements and other information concerning registrants that file electronically
with the Commission, which can be accessed at http://www.sec.gov. Such reports,
proxy statements and other information concerning the Company can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
This Prospectus constitutes a part of a registration statement on Form
S-3 (the "Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"). This
Prospectus omits certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration Statement and to the
exhibits relating thereto for further information with respect to the Company
and the Debt Securities offered hereby. Any statements contained herein
concerning the provisions of any document are not necessarily complete and, in
each instance, reference is hereby made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended September
30, 1997 and its Quarterly Report on Form 10-Q for the quarter ended December
31, 1997, each of which was previously filed by the Company with the Commission
under the Exchange Act, are incorporated herein by reference. All documents
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 the Debt Securities offered hereby (except to the extent
specified therein or in rules or regulations of the Commission) shall be deemed
to be incorporated herein by reference and to be part hereof from the date of
filing of such documents.
Any statement contained herein or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such 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 a copy
of this Prospectus has been delivered, on the written or oral request of such
person, a copy of any or all of the documents referred to above
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which have been or may be incorporated in this Prospectus by reference other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into the incorporated document. Requests for such
copies should be directed to: Oakwood Homes Corporation, Post Office Box 27081,
Greensboro, North Carolina 27425-7081, Attention: Secretary; Telephone: (336)
644-2400.
THE COMPANY
The Company, which was founded in 1946, designs, manufactures and
markets manufactured homes and finances the majority of its sales. The Company
operates five manufacturing plants in North Carolina, five in Georgia, three in
Texas, and one each in California, Colorado, Oregon and Tennessee. The Company's
manufactured homes are sold at retail through 300 Company owned and operated
sales centers located primarily in the southeastern and southwestern United
States and to approximately 93 independent retailers located primarily in the
western and southern United States. The Company believes that it is the largest
retailer, and the third largest manufacturer, of manufactured homes in the
United States. In addition, the Company sells insurance underwritten by an
independent company to customers choosing to purchase insurance. The Company
also earns insurance premiums by accepting reinsurance risk on portions of the
insurance policies that it sells.
As one of a few companies in the manufactured housing industry that
combines manufacturing, retail sales and financing of manufactured homes, the
Company believes it has a competitive advantage over others in the industry. The
Company's ability to control the design, manufacture and distribution of its
homes enables it to plan its inventory requirements, to control the quality and
servicing of its products and to respond promptly to changes in the retail
market. In addition, the Company's ability to finance its sales allows the
Company to make credit decisions promptly and to minimize the inconvenience to
the customer of obtaining credit.
The Company provides financing for the majority of homes it sells
through loans originated by the Company. The Company obtains funds to finance
loans primarily through sales of REMIC trust certificates to institutional
investors. The Company also uses short-term credit facilities and internally
generated funds to support loans until a pool of loans is accumulated to provide
for permanent financing generally at fixed rates. Internal financing of loans
has allowed the Company to broaden its sources of financing by obtaining funds
secured by loans directly from institutional investors and from public markets.
The Company's ability to continue to finance loans is dependent upon the
continued availability of adequate sources of capital.
The Company and Deutsche Financial Services Corporation, a subsidiary
of Deutsche Bank, N.A., formed Deutsche Financial Capital Limited Liability
Company to provide retail sales financing for independent dealers that are not
affiliated with the Company. Under the joint venture, Deutsche Financial
Services Corporation provides marketing services and the Company is responsible
for origination and servicing. The joint venture has completed two REMIC
securitizations.
The Company's principal executive offices are located at 7800 McCloud
Road, Greensboro, North Carolina 27409-9634 and its telephone number at that
location is (336) 664-2400. Except as otherwise indicated by the context,
references herein to the "Company" include the Company, its subsidiaries and its
predecessors.
RECENT DEVELOPMENTS
On January 5, 1998, the Company entered into an Acquisition Agreement
with Schult Homes Corporation ("Schult") providing for the merger of Schult with
a wholly-owned subsidiary of Oakwood, with Schult surviving the merger as a
wholly-owned subsidiary of Oakwood. The Company has agreed to pay $22.50 for
each share of Schult Common Stock outstanding at the effective time of the
merger, and to assume certain outstanding options to purchase common stock.
Based on 4,484,533 shares of Schult Common Stock outstanding at January 5, 1998
(including shares issuable upon conversion of certain units), the aggregate cash
purchase price to be paid by Oakwood would be approximately $101,000,000. Schult
is the eighth largest producer of factory built homes and operates ten
manufacturing facilities in seven states. At the closing of the merger, each
share of Schult common stock will be converted into, and will represent the
right to receive, $22.50 in cash. The
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acquisition is subject to certain conditions, including the completion of due
diligence, consummation of financing for the merger and approval by the
shareholders of Schult common stock. Consummation is expected on or before
February 28, 1998, assuming all conditions are met.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the company for each of the last five fiscal years.
THREE MONTHS ENDED
FISCAL YEAR ENDED SEPTEMBER 30 DECEMBER 31,
- ------------------------------------------- -----------------
1993 1994 1995 1996 1997 1996 1997
- ---- ---- ---- ---- ---- ---- ----
2.41 3.07 3.51 4.97 5.77 5.25 4.77
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
The summary information presented below for each of the five fiscal
years in the period ended September 30, 1997 has been derived from the
consolidated financial statements of the Company, which have been audited by
Price Waterhouse LLP, independent accountants. The summary financial information
for the three month periods ended December 31, 1997 and 1996 has been taken from
unaudited consolidated financial statements of the Company, which in the opinion
of the Company's management include all adjustments (which include only normal
recurring adjustments) necessary for a fair statement of the information set
forth therein. Results of operations for a three month period are not
necessarily indicative of results of operations for a full year. Effective for
fiscal 1998, the Company adopted Statement of Financial Accounting Standards No.
128, "Earnings per Share" ("FAS 128") which establishes standards for computing
and presenting earnings per share ("EPS") by replacing the presentation of
primary EPS with a presentation of basic EPS, and a dual presentation of basic
and diluted EPS in the income statement. Earnings per share amounts for each of
the five fiscal years ended September 30, 1997 and for the three month period
ended December 31, 1996 have been restated to reflect the adoption by the
Company of FAS 128.
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THREE MONTHS ENDED
FISCAL YEAR ENDED SEPTEMBER 30, DECEMBER 31,
------------------------------- ------------
1993 1994 1995 1996 1997 1996 1997
---- ---- ---- ---- ---- ---- ----
(IN THOUSANDS, EXCEPT PER SHARE DATA)
STATEMENT OF INCOME DATA: (1)
Net Sales......................... 422,103 595,127 741,521 862,079 952,704 177,782 221,893
Total Revenues..................... 483,736 664,610 821,412 973,922 1,070,051 207,190 254,663
Net income......................... 25,715 35,655 45,318 68,255 81,913 15,193 17,802
Earnings per share
Basic........................... 0.65 0.82 1.03 1.53 1.79 0.33 0.39
Diluted......................... 0.59 0.78 0.99 1.47 1.75 0.33 0.38
Cash dividends per share........... 0.04 0.04 0.04 0.04 0.04 0.01 0.01
AS OF
AS OF SEPTEMBER 30, DECEMBER 31,
------------------------------------------------------------ ----------------------
1993 1994 1995 1996 1997 1996 1997
---- ---- ---- ---- ---- ---- ----
(IN THOUSANDS)
BALANCE SHEET DATA: (1)
Total assets........................ 596,950 590,397 782,640 841,977 904,506 751,653 890,343
Notes and bonds payable............. 264,225 207,990 198,812 134,379 78,815 122,782 72,989
- ---------------------------
(1) On June 30, 1995 the Company completed its business combination with
Destiny Industries, Inc. ("Destiny"). The Company issued 1,850,000 shares
of its common stock in exchange for all the outstanding stock of Destiny
(an exchange ratio of approximately 4.63 Company common shares for each
outstanding Destiny common share).
On September 30, 1994 the Company completed its business combination with
Golden West Homes ("Golden West"). The Company issued 1,225,714 shares of
its common stock in exchange for all outstanding common and convertible
preferred stock of Golden West, and substituted options to acquire 174,232
shares of Company common stock for previously granted options to acquire
Golden West common stock (an exchange ratio of approximately 0.12 of a
Company common share for each outstanding Golden West common share and each
right to acquire a Golden West common share).
The business combinations have been accounted for as pooling of interests,
and accordingly, the above table reflects the combined results of
operations and financial position of the Company, Destiny and Golden West
for all periods presented.
USE OF PROCEEDS
Except as otherwise set forth in the Prospectus Supplement relating to
a series of Debt Securities, net proceeds to be received by the Company from the
sale of the Debt Securities will be used for general corporate purposes which
may include expenses relating to potential acquisitions, including the
acquisition of Schult Homes Corporation, repayment of certain long-term and
short-term debt, and supporting the Company's retail expansion.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the
"Indenture) to be entered into between the Company and the trustee named in the
applicable Prospectus Supplement (the "Trustee"). A form of the Indenture has
been filed as an exhibit to the Registration Statement of which this Prospectus
is a part. The following summaries of certain provisions of the Debt Securities
and the Indenture do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the
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Indenture, including the definitions therein of certain terms. Wherever
particular provisions or defined terms of the Indenture (or of any form of Debt
Security which is adopted pursuant to the Indenture) are referenced, such
provisions or defined terms are incorporated herein by reference. As used under
this heading, the term "Debt Securities" includes the debt securities being
offered pursuant to this Prospectus and all other debt securities issued by the
Company from time to time under the Indenture.
GENERAL
The Debt Securities will be unsecured obligations of the Company.
Unless otherwise stated in the applicable Prospectus Supplement, the Debt
Securities will be unsubordinated obligations of the Company and will rank pari
passu in right of payment with all other unsecured and unsubordinated
indebtedness of the Company. The Company may also issue Debt Securities that are
subordinated in right of payment, in the manner and to the extent described in
the applicable Prospectus Supplement, to all existing and future Senior
Indebtedness (as defined in the applicable Prospectus Supplement) of the
Company.
The Indenture does not limit the amount of Debt Securities which can be
issued thereunder and provides that Debt Securities may be issued thereunder in
one or more series up to the aggregate principal amount which may be authorized
from time to time by the Company. All Debt Securities of one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of any holder, for issuances of additional Debt
Securities of such series. The Indenture provides that there may be more than
one Trustee thereunder; each Trustee serving with respect to one or more series
of Debt Securities. Reference is made to the Prospectus Supplement for the terms
of the series of Debt Securities being offered thereby, including, where
applicable: (i) the title of such Debt Securities; (ii) the limit, if any, upon
the aggregate principal amount of such Debt Securities; (iii) the person to whom
any interest on a Debt Security of that series shall be payable, if other than
the person in whose name that Debt Security is registered at the close of
business on the regular record date for such series; (iv) the date or dates, or
the method of determination thereof, on which the principal and premium, if any,
of such Debt Securities are payable; (v) the rate or rates (which may be fixed,
floating or adjustable), or the method of determination thereof, at which such
Debt Securities will bear interest, if any; the date or dates from which such
interest will accrue or method by which such date or dates will be determined;
the interest payment dates on which such interest will be payable and the record
dates for the interest payable on such interest payment dates or method by which
such date or dates will be determined; and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day months; (vi)
the place or places where the principal of, and premium, if any, and any
interest on such Debt Securities will be payable; (vii) the price or prices at
which, the period or periods within which, the currencies, currency units or
composite currencies in which and the terms and conditions upon which such Debt
Securities may be redeemed in whole or in part, at the option of the Company;
(viii) the obligation, if any, of the Company to redeem or purchase such Debt
Securities pursuant to any sinking fund or analogous provisions or at the option
of a holder and the price or prices at which and the period or periods within
which and the terms and conditions upon which such Debt Securities will be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(ix) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which such Debt Securities will be issuable; (x) whether
the Debt Securities of that series or any covenants of the Company with respect
to that series may be subject to defeasance or covenant defeasance and, if so,
the requirements for such defeasance or covenant defeasance; (xi) if the amount
of payments of principal of or any premium or interest on any Debt Securities of
the series may be determined with reference to an index, formula or other
method, the manner in which such amounts shall be determined; (xii) whether any
of the Debt Securities of the series will be issued in book-entry form and, in
such case, the depositary for such book-entry securities and the circumstances
under which any such book-entry security may be registered for transfer or
exchange in the name of a person other than such depositary or its nominee;
(xiii) if other than the principal amount, the portion of the principal amount
of such Debt Securities which will be payable upon declaration of acceleration
of the maturity thereon pursuant to the Indenture; (xiv) provisions, if any,
granting special rights to holders of the Debt Securities upon the occurrence of
any specified events; (xv) any additions, deletions or changes in the Events of
Default or covenants of the Company with respect to such Debt Securities; (xvi)
the terms pursuant to which the Debt Securities of the
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series will be subordinate and subject in right of payment to the prior payment
in full of all senior indebtedness of the Company; (xvii) whether the payment of
principal and any premium or interest on the Debt Securities will be guaranteed
by one or more guarantors, including subsidiaries of the Company; (xviii)
whether Debt Securities of any series are to be issuable as registered
securities, bearer securities or alternatively as bearer and registered
securities and whether the bearer securities are to be issuable with coupons,
without coupons or both, and any restrictions applicable to the offer, sale or
delivery of the bearer securities and the terms, if any, upon which bearer
securities of the series may be exchanged for registered securities of the
series and vice versa; and (xix) any other terms of such Debt Securities whether
or not consistent with the provisions of the Indenture. (Section 301)
If the principal of (and premium, if any) or any interest on Debt
Securities of any series are payable in a foreign or composite currency, the
restrictions, elections, federal income tax consequences, specific terms and
other information with respect to such Debt Securities and such currency will be
described in the Prospectus Supplement relating thereto.
One or more series of Debt Securities may be sold at a discount below
their stated principal amount bearing no interest or interest at a rate that at
the time of issuance is below market rates ("Original Issue Discount
Securities"). (Section 502) One or more series of Debt Securities may be debt
securities the terms of which provide that the principal amount payable at the
stated maturity may be more or less than the principal face amount of such
security at the time of issuance ("Indexed Securities"). One or more series of
Debt Securities may be variable-rate debt securities that may be exchangeable
for fixed-rate debt securities. Federal income tax consequences and other
special considerations applicable to any such series will be described in the
Prospectus Supplement relating thereto.
Unless otherwise provided in the applicable Prospectus Supplement, the
principal of (and premium, if any) and any interest on Debt Securities will be
payable at the principal corporate trust office of the Trustee at the location
identified in the applicable Prospective Supplement; provided, however, that
payment of interest on Debt Securities may be made at the option of the Company
by check mailed to the holders thereof or by wire transfer to an account
maintained by the person entitled thereto. (Section 307)
All moneys paid by the Company to the Trustee for the payment of
principal of (and premium, if any) or any interest on any Debt Security that
remains unclaimed by the holder of such Debt Security at the end of two years
after such principal, premium or interest shall have become due and payable will
be repaid by the Trustee to the Company on demand, and such holder will
thereafter look only to the Company for payment thereof. (Section 1003)
The Indenture contains no covenants or other provisions to afford
protection to holders of the Debt Securities in the event of a highly leveraged
transaction or a change in control of the Company, except to the limited extent
described under "--Covenants" and "--Restrictions on Consolidation, Merger and
Certain Sales of Assets" below. In the event such protective covenants or
provisions are added at a later time, they will be described in the applicable
Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will be issued only in fully-registered form without coupons,
which form may be a Global Debt Security as described below, in denominations of
$1,000 or any integral multiple thereof. See "--Book-Entry, Delivery and Form."
The Company will not charge a service charge for any registration of transfer or
exchange of Debt Securities but may require payment of a sum sufficient to cover
any tax or other governmental charge in connection therewith. (Section 305)
The Debt Securities will be direct obligations of the Company and will
be unsecured. The Indenture does not restrict the amount of additional unsecured
debt which the Company may incur.
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BOOK-ENTRY, DELIVERY AND FORM
If the related Prospectus Supplement so indicates, a series of Debt
Securities will be issued in the form of one or more fully-registered global
debt securities (each, a "Global Debt Security"). Each Global Debt Security will
be deposited with, or on behalf of, The Depository Trust Company, New York, New
York ("DTC") and registered in the name of DTC's nominee.
One or more Global Debt Securities will represent all Debt Securities
of a series that have the same terms, including, but not limited to, the same
interest payment dates, rates of interest (if any), maturity and repayment and
redemption provisions (if any). Ownership of beneficial interests in Global Debt
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to interests of Participants
(defined below)) and its Participants (with respect to interests of persons
other than Participants). Payments of principal and interest on beneficial
interests in Global Debt Securities will be made through the Trustee to DTC.
Global Debt Securities will not be exchangeable for a certificate in definitive
registered form (each, a "Certificated Note") and, except as set forth herein,
will not otherwise be issuable in definitive form.
Except as set forth below, the Global Debt Security may be transferred,
in whole and not in part, only to another nominee of DTC or to a successor of
DTC or its nominee.
DTC has advised the Company and any underwriters named in the
applicable Prospectus Supplement as follows: DTC is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in each
Participant's account, thereby eliminating the need for physical movement of
securities certificates. Direct Participants ("Direct Participants") include
securities brokers and dealers, banks, trust companies, clearing corporations,
and certain other organizations. DTC is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to DTC's system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or indirectly ("Indirect
Participants"). The rules applicable to DTC and its Participants are on file
with the Commission.
Purchases of beneficial interests in Global Debt Securities under DTC's
system must be made by or through Direct Participants, which will receive a
credit for the beneficial interests in Global Debt Securities on DTC's records.
The ownership interest of each actual purchaser of each beneficial interest in a
Global Debt Security (the "Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchase, but Beneficial Owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the Direct or Indirect
Participant through which the Beneficial Owner entered into the transaction.
Transfers of beneficial interests in Global Debt Securities are to be
accomplished by entries made on the books of Participants acting on behalf of
the Beneficial Owners. Beneficial Owners will not receive certificates
representing their ownership interests in Global Debt Securities, except in the
event that use of the book-entry system for one or more Debt Securities is
discontinued.
To facilitate subsequent transfers, all Global Debt Securities
deposited by Participants with DTC are registered in the name of DTC's
partnership nominee, Cede & Co. The deposit of Global Debt Securities with DTC
and their registration in the name of Cede & Co. effect no change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the Global
Debt Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Global Debt Securities are credited, which
may or
8
may not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Global Debt Securities within an issue are being redeemed, DTC's current
practice is to determine by lot the amount of the interest of each Direct
Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to Global
Debt Securities. Under its usual procedures, DTC will mail an "Omnibus Proxy" to
the Company as soon as possible after the record date. The Omnibus Proxy assigns
Cede & Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Global Debt Securities are credited on the record date (identified
in a listing attached to the Omnibus Proxy).
Principal and interest payments on the Global Debt Securities will be
made to DTC. DTC's practice is to credit Direct Participants' accounts on the
payable date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payment on the payable
date. Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as in the case of securities held for the
accounts of customers in bearer form or registered in "street name," and will be
the responsibility of such Participant and not of DTC, or the Company, subject
to any statutory or regulatory requirements as may be in effect from time to
time. Payment of principal and interest to DTC is the responsibility of the
Company, disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
A Beneficial Owner shall give notice to elect to have its interest in a
Global Debt Security purchased or tendered, through its Participant, to the
Paying Agent, and shall effect delivery of such interest in a Global Debt
Security by causing the Direct Participant to transfer the Participant's
interest, on DTC's records, to the Paying Agent. The requirement for physical
delivery of Global Debt Securities in connection with a demand for purchase or a
mandatory purchase will be deemed satisfied when the ownership rights in the
Global Debt Securities are transferred by a Direct Participant on DTC's records.
DTC may discontinue providing its services as securities depositary
with respect to the Global Debt Securities at any time by giving reasonable
notice to the Company or the agents or underwriters involved in the sale of the
Global Debt Securities. Under such circumstances, in the event that a successor
securities depositary is not obtained, Certificated Notes will be printed and
delivered in exchange for the Global Debt Securities held by DTC.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary). In that event,
Certificated Notes will be printed and delivered in exchange for the Global Debt
Securities held by DTC.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the Company believes to be reliable,
but the Company takes no responsibility for the accuracy thereof.
None of the Company, any underwriter or agent, the Trustee, any paying
agent or the registrar for the Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments
9
made on account of beneficial ownership interests in a Global Debt Security or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SUBORDINATION
The board resolutions adopted, officers' certificates executed or
indentures supplemental to this Indenture established in connection with any
particular series of Debt Securities may provide that such Debt Securities are
subordinated to other Debt Securities or to other indebtedness of the Company.
Such board resolutions, officers' certificates or indentures supplemental will
state the terms pursuant to which such series of subordinated Debt Securities
will be made subordinate and subject in right of payment to the prior payment in
full of all senior indebtedness of the Company, and the definition of any such
senior indebtedness, all of which will be described in the Prospectus Supplement
relating thereto. (Section 301 and Article Thirteen)
COVENANTS
The particular covenants, if any, relating to any series of Debt
Securities will be described in the Prospectus Supplement relating to such
series. If any such covenants are described, the Prospectus Supplement will also
state whether the "covenant defeasance" provisions described below under
"--Defeasance--Defeasance of Certain Covenants" also apply.
RESTRICTIONS ON CONSOLIDATION, MERGER AND CERTAIN SALES OF ASSETS
The Indenture provides that the Company may consolidate with or merge
with or into, or convey, transfer or lease its properties and assets
substantially as an entirety to any entity, and may permit any entity to
consolidate with or merge with or into, or convey, transfer or lease its
properties and assets substantially as an entirety to, the Company, provided
that (i) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or the lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing and (ii)
either the Company shall be the continuing corporation, or the successor entity
(if other than the Company) shall be a corporation, trust or partnership
organized under the laws of the United States, any state thereof or the District
of Columbia, and such successor entity shall expressly assume by an indenture
supplemental to the Indenture the due and punctual payment of the principal of,
and any premium and interest on, all of the Debt Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed by the Company. Upon
the assumption of the Company's obligations by such an entity in such
circumstances, subject to certain exceptions, the Company shall be discharged
from all obligations under the Debt Securities and the Indenture. (Article
Eight)
EVENTS OF DEFAULT
Except as may otherwise be provided in a Prospectus Supplement with
respect to a particular series of Debt Securities, the following events with
respect to a particular series of Debt Securities are defined as an "Event of
Default": (i) default for 30 days in payment of any interest on the Debt
Securities; (ii) default in payment of principal of (and premium, if any, on)
any of the Debt Securities at maturity; (iii) default in the deposit of any
sinking fund payment, when due by the terms of the Debt Securities of such
series; (iv) default for 60 days after notice in performance of any other
covenant in the Indenture or Debt Securities; or (v) certain events of
bankruptcy, insolvency, receivership or reorganization. (Section 501) No Event
of Default with respect to a particular series of Debt Securities issued under
the Indenture necessarily constitutes an Event of Default with respect to any
other series of Debt Securities issued thereunder.
If an Event of Default shall have occurred and be continuing in respect
of any series of Debt Securities, either the Trustee or the holders of not less
than 25% in principal amount of the Debt Securities of such series then
outstanding may declare the principal amount (or, if the Debt Securities of such
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be
10
specified by the terms of such series) of all the Debt Securities of such series
to be due and payable immediately by a notice in writing to the Company (and to
the Trustee, if given by the holders). Upon certain conditions, such declaration
may be annulled and past defaults (except, unless theretofore cured, a default
in payment of principal of or premium, if any, or interest on the Debt
Securities or in respect of a covenant which cannot be modified or amended
without the consent of every holder) may be waived by the holders of a majority
in aggregate principal amount of the Debt Securities of such series then
outstanding. (Section 502)
The Indenture requires the Company to file annually with the Trustee an
officers' certificate either stating the absence of any default or specifying
any default that may exist. (Section 1009) The Indenture provides that the
Trustee shall, within 45 days after the occurrence of a default, give to the
holders of the Debt Securities notice of such default, unless such default has
been cured or waived; provided that, except in the case of default in the
payment of principal of or premium, if any, or interest on any of the Debt
Securities of such series, or in the payment of any sinking fund installment
with respect to the Debt Securities of such series, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interest of the holders of the
Debt Securities. The term "default" for the purpose of this provision only shall
mean the occurrence of any event which 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. (Section 602)
The Indenture provides that the Trustee will be under no obligation,
subject to the duty of the Trustee during a default to act with the required
standard of care, to exercise any of its rights or powers under the Indenture at
the request or direction of any of the holders of the Debt Securities of any
series, unless such holders shall have offered to the Trustee reasonable
security or indemnity against costs, expenses and liabilities which might be
incurred by it in compliance with such request. (Section 507) Subject to such
provisions for indemnification of the Trustee, the holders of a majority in
principal amount of the 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)
Reference is made to the Prospectus Supplement relating to each series
of Debt Securities which are Original Issue Discount Securities or Indexed
Securities for the particular provisions relating to acceleration of the
maturity of a portion of the principal amount of such Original Issue Discount
Securities or Indexed Securities upon the occurrence of an Event of Default and
the continuation thereof.
DEFEASANCE
The Indenture shall cease to be of further effect with respect to the
Debt Securities of any series (except as to any surviving rights of registration
of transfer or exchange of Debt Securities expressly provided for in the
Indenture and rights to receive the principal, premium, if any, and interest, if
any, on the Debt Securities) when all such Debt Securities have been delivered
to the Trustee for cancellation or have become due and payable or will upon
Stated Maturity or redemption within one year become due and payable and the
Company has irrevocably deposited with the Trustee (as trust funds for the
purpose) an amount in the currency or currencies, currency unit or composite
currency sufficient to pay and discharge the entire indebtedness on such Debt
Securities as described below.
The Prospectus Supplement relating to the Debt Securities of any series
will state if any additional defeasance provisions will apply to the Debt
Securities of such series.
DEFEASANCE AND DISCHARGE
The Indenture provides, with respect to the Debt Securities of any
series to the extent established in the terms thereof, that the Company will be
deemed discharged from any and all obligations in respect of the Debt Securities
of such series (except for certain obligations to register the transfer or
exchange of Debt Securities of such series, to replace stolen, lost or mutilated
Debt Securities of such series, to maintain paying
11
agencies and hold moneys for payment in trust) upon the deposit with the
Trustee, in trust, cash or U.S. Government Obligations (as defined in the
Indenture), which through the payment of interest and principal thereof in
accordance with their terms will provide money in an amount sufficient to pay
any installment of principal of (and premium, if any) and each installment of
interest and any mandatory sinking fund payments in respect of the Debt
Securities of such series on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities of such series. Such
option may be exercised only if, among other things, the Company has delivered
to the Trustee an opinion of independent counsel to the effect that, among other
things, there has been a change in federal income tax law or the judicial
interpretation thereof, or there has been published by, or the Company has
received from, the Internal Revenue Service a ruling to the effect that, in each
case, such a discharge will not be deemed, or result in, a taxable event with
respect to the holders of the Debt Securities of such series. (Section 403)
DEFEASANCE OF CERTAIN COVENANTS
The Indenture provides, with respect to the Debt Securities of any
series to the extent established in the terms thereof, that the Company may omit
to comply with certain restrictive covenants applicable to such Debt Securities
and that such omissions shall not be deemed to be Events of Default under the
Indenture and the Debt Securities of such series if the Company deposits with
the Trustee, in trust, cash or U.S. Government Obligations which through the
payment of interest and principal thereof in accordance with their terms will
provide money in an amount sufficient to pay principal (and premium, if any) and
interest and any mandatory sinking fund payments in respect of the Debt
Securities on the stated maturity of such payments in accordance with the terms
of the Indenture and such Debt Securities of such series. The Company will also
be required to deliver to the Trustee, among other things, an opinion of counsel
to the effect that the holders will not recognize income, gain or loss for
federal income tax purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit and defeasance had
not occurred. (Section 1008)
MODIFICATION OF THE INDENTURE
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
aggregate principal amount of the outstanding Debt Securities of each series
affected by such modification or amendment; provided that no such modification
or amendment, without the consent of the holders of each of the Debt Securities
affected thereby, may (i) change the stated maturity of the principal of, or
waive a default in the payment of the principal of or interest on, any Debt
Security, or reduce the principal amount thereof or any premium or interest
thereon or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to the terms of the Indenture, or
change any place of payment where any Debt Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the stated maturity thereof (or, in the case of
redemption, on or after the redemption date, or, in the case of repayment at the
option of the holder, on or after the date fixed for repayment); (ii) reduce the
percentage in principal amount of the outstanding Debt Securities of any series,
the consent of whose holders is required for any such supplemental indenture, or
the consent of whose holders is required for any waiver (of compliance with
certain provisions of the Indenture or certain defaults thereunder and their
consequences) provided for in the Indenture; (iii) modify any of the provisions
relating to supplemental indentures, waiver of past defaults or waiver of
certain covenants, except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the holder of each outstanding Debt Security affected thereby; or
(iv) in the case of any subordinated Debt Securities, modify any of the
provisions in the Indenture relating to subordination or to the definition of
"Senior Indebtedness" in a manner adverse to the holders of such subordinated
Debt Securities. (Section 902)
12
Modifications and amendments of the Indenture may be made by the
Company and the Trustee without the consent of any holder of Debt Securities for
any of the following purposes: (i) to evidence the succession of another entity
to the Company and the assumption by any such successor of the covenants of the
Company in the Indenture and in the Debt Securities as obligor under the
Indenture; (ii) to add to the covenants of the Company for the benefit of the
holders of all or any series of Debt Securities or to surrender any right or
power conferred upon the Company in the Indenture; (iii) to add additional
Events of Default; (iv) to add or change any provisions of the Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Debt
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons, or to permit or facilitate the issuance of
Debt Securities in uncertificated form; (v) to add to, change or eliminate any
of the provisions of the Indenture in respect of one or more series of Debt
Securities, provided that any such addition, change or elimination (1) shall
neither (A) apply to any Debt Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the holder of any such Debt Security with
respect to such provision or (2) shall become effective only when there is no
such Debt Security outstanding; (vi) to establish the form or terms of Debt
Securities of any series as permitted by the Indenture; (vii) to evidence and
provide for the acceptance of appointment under the Indenture by a successor
Trustee with respect to the Debt Securities of one or more series and to add to
or change any of the provisions of the Indenture as shall be necessary to
provide for or facilitate the administration of the trusts under the Indenture
by more than one Trustee; (viii) to secure the Debt Securities; (ix) to
supplement any of the provisions of the Indenture to such extent as shall be
necessary to permit or facilitate the defeasance, covenant defeasance or
satisfaction and discharge of any series of Debt Securities pursuant to the
Indenture; provided that any such action shall not adversely affect the
interests of the holders of Debt Securities of such series or any other series
of Debt Securities in any material respect; (x) to cure any ambiguity, to
correct or supplement any provision in the Indenture which may be inconsistent
with any other provision in the Indenture, or to make any other provisions with
respect to matters or questions arising under the Indenture, provided that such
action shall not adversely affect the interests of the holders of Debt
Securities of any series; (xi) to add a guarantor or guarantors for any or all
series of Debt Securities; and (xii) to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act of 1939, as amended. (Section 901)
CONCERNING THE TRUSTEE
The Company may maintain banking and other commercial relationships
with the Trustee and its affiliates in the ordinary course of business.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities through one or more
underwriters or dealers, directly to a limited number of purchasers or to a
single purchaser, through agents or through a combination of any such or other
methods. The Prospectus Supplement with respect to a series of Debt Securities
will set forth the terms of the offering of the Debt Securities, including the
name or names of any underwriters, the purchase price of the Debt Securities and
the proceeds to the Company from such sale, any delayed delivery arrangements,
any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price, any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
such securities may be listed. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time. Only underwriters named in the Prospectus Supplement are
deemed to be underwriters in connection with the securities offered thereby.
If underwriters are used in the sale, the Debt Securities will be
acquired by the underwriters for their own account and may be resold 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.
The Debt Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or underwriters with
respect to a particular underwritten offering of Debt Securities will be named
in the
13
Prospectus Supplement relating to such offering and, if in an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement, the obligations of the underwriters to purchase the Debt
Securities will be subject to certain conditions precedent and the underwriters
will be obligated to purchase all the Debt Securities if any are purchased.
In connection with the sale of Debt Securities, underwriters or agents
may receive compensation from the Company or from purchasers of Debt Securities
for whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell Debt 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 that participate
in the distribution of Debt 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 Debt Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the related Prospectus Supplement.
The Debt Securities may be sold directly by the Company or through
agents designated by the Company from time to time. Any agent involved in the
offer or sale of the Debt Securities in respect of which this Prospectus is
delivered is named, and any commissions payable by the Company to such agent
will be set forth, in the Prospectus Supplement relating thereto. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase Debt 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. The obligations of any purchaser under any such contract will be subject
to the condition that the purchase of the Debt Securities shall not be
prohibited at the time of delivery under the laws of the jurisdiction to which
such purchaser is subject. The underwriters and such other agents will not have
any responsibility in respect of the validity or performance of such contracts.
Agents and underwriters may be entitled under agreements entered into
with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
by the Company with respect to payments they may be required to make in respect
thereof. Agents and underwriters may be customers of, engage in transactions
with, or perform services for the Company in the ordinary course of business.
The Debt Securities may or may not be listed on a national securities
exchange or quoted on the Nasdaq National Market System. No assurances can be
given that there will be an active trading market for the Debt Securities.
If underwriters or dealers are used in the sale, until the distribution
of the Debt Securities is completed, rules of the Commission may limit the
ability of any such underwriters and selling group members to bid for and
purchase the Debt Securities. As an exception to these rules, representatives of
any underwriters are permitted to engage in certain transactions that stabilize
the price of the Debt Securities. Such transactions may consist of bids or
purchases for the purpose of pegging, fixing or maintaining the price of the
Debt Securities. If the underwriters create a short position in the Debt
Securities in connection with the offerings, I.E., if they sell more Debt
Securities that are set forth on the cover page of the Prospectus Supplement,
the representatives of the underwriters may reduce that short position by
purchasing Debt Securities in the open market. The representatives of the
underwriters may also elect to reduce any short portion by exercising all or
part of any over-allotment option described in the Prospectus Supplement. In
general, purchases of a security for the purpose of stabilization or to reduce a
short position could cause the price of the security to be higher than it might
be in the absence of such purchases. The Company makes no representation or
prediction as to
14
the direction or magnitude of any effect that the transactions described above
may have on the price of the Debt Securities. In addition, the Company makes no
representation that the representatives of any underwriters will engage in such
transactions or that such transactions, once commenced, will not be discontinued
without notice.
LEGAL MATTERS
Certain legal matters in connection with this offering will be passed
upon for the Company by Kennedy Covington Lobdell & Hickman, L.L.P., 100 North
Tryon Street, 42nd Floor, Charlotte, North Carolina 28202, and for any
underwriters or agents by Fried, Frank, Harris, Shriver & Jacobson (a
partnership including professional corporations), One New York Plaza, New York,
New York 10004. Clarence W. Walker, a partner in the firm of Kennedy Covington
Lobdell & Hickman, L.L.P., is a member of the Board of Directors of the Company.
As of February 26, 1998, partners, counsel and associates of Kennedy Covington
Lobdell & Hickman, L.L.P. and their spouses and minor children beneficially
owned an aggregate of 44,497 shares of common stock of the Company.
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Company's Annual Report on Form 10-K for its fiscal year ended September
30, 1997 have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of such firm as experts in
auditing and accounting.
15
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No dealer, salesperson or other individual has been authorized to give any
information or to make any representations not contained in this Prospectus in
connection the offering covered by the Prospectus. If given or made, such
information or representations must not be relied upon as having been authorized
by the Company or any underwriter, dealer or agent. This Prospectus does not
constitute an offer to sell, or a solicitation of an offer to buy, any of the
securities offered hereby in any jurisdiction where, 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, at any time or under any
circumstances, create an implication that there has not been any change in the
facts set forth in this Prospectus or in the affairs of the Company since the
date hereof.
TABLE OF CONTENTS
Page
----
Available Information.............................2
Documents Incorporated by Reference...............2
The Company.......................................3
Ratio of Earnings to Fixed Charges................4
Summary Consolidated Financial Information........4
Use of Proceeds...................................5
Description of Debt Securities....................5
Plan of Distribution.............................13
Legal Matters....................................15
Experts..........................................15
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$400,000,000
OAKWOOD HOMES
CORPORATION
DEBT SECURITIES
-------------------------
PROSPECTUS
-------------------------
FEBRUARY 27, 1998
- --------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemized statement of expenses of the Registrant in
connection with the issuance and distribution of the securities being registered
hereby, other than underwriting discounts and commissions. All amounts are
estimates except for the SEC registration fee.
SEC registration fee $118,000.00
Accounting fees and expenses 75,000.00
Legal fees and expenses 80,000.00
Blue Sky fees and expenses 5,000.00
Trustee's, transfer agent's and registrar's fees 30,000.00
Rating Agency fees 120,000.00
Printing and engraving expenses 50,000.00
Miscellaneous 20,000.00
------------
Total Expenses $498,000.00
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 55-8-51 through 55-8-56 of the North Carolina Business
Corporation Act (the "Act") provide, in substance, that North Carolina
corporations shall have the power, under specified circumstances, to indemnify
their directors, officers, employees and agents in connection with proceedings
brought against them by a third party or in the right of the corporation, by
reason of the fact that they were or are such directors, officers, employees or
agents, against expenses incurred in any such proceedings.
Section 9.5 of the Registrant's Bylaws provides that a director of the
Registrant shall have the right to be indemnified by the Registrant against
expenses, including reasonable attorneys' fees, incurred by him or her in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether or not
brought by or on behalf of the Registrant, arising out of his or her status as
such director or as an officer, employee or agent of the Registrant and against
any liability incurred by him or her, including without limitation, satisfaction
of any judgment, money decree, fine, penalty or settlement, for which he or she
may have become liable in connection with any such action, suit or proceeding.
The Bylaws further contemplate that the indemnification provisions permitted
thereunder are not exclusive of any other rights to which such person may be
entitled apart from the provisions of the Bylaws, and shall not be limited by
the provisions for indemnification in Sections 55-8-51 through 55-8-56 of the
Act or any successor statutory provisions.
Section 55-8-57 of the Act also permits a corporation to purchase and
maintain insurance on behalf of its directors and officers against liabilities
which they may incur in their capacities as such,
II-1
whether or not the corporation would have the power to indemnify them under
other provisions of the statute. The Registrant has purchased insurance to
provide for indemnification of directors and officers.
Paragraph 11 of the Registrant's Articles of Incorporation provides that
a director of the Registrant shall have no personal liability arising out of any
action for monetary damages for breach of his or her duty as a director to the
full extent permitted by the laws of the State of North Carolina.
Reference is made to the proposed form of Underwriting Agreement filed
as Exhibit 1.1 to this Registration Statement, pursuant to which the
underwriters thereunder may, under certain circumstances, indemnify the
directors and officers of the Company from certain liabilities arising out of
the offering of the securities sold thereunder, including liabilities under the
Securities Act of 1933, as amended.
ITEM 16. EXHIBITS.
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture.
5.1 Opinion of Kennedy Covington Lobdell & Hickman, L.L.P. with
respect to legality.
12.1 Computation of Ratios of Earnings to Fixed Charges.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Kennedy Covington Lobdell & Hickman, L.L.P.
(included as part of Exhibit 5.1).
24.1 Power of Attorney (included on Pages II-6 and II-7 of the
Registration Statement).
25.1 Form T-1 Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 (Form T-1 Statement to be filed
upon selection of Trustee).
ITEM 17. UNDERTAKINGS.
(a) Undertaking in respect of Rule 415.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
II-2
(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 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) Undertaking in respect of incorporation by reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in 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) Undertaking in respect of Rule 430A.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration
II-3
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) Undertaking in respect of qualification of trust indentures.
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 of 1939 in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act of 1939.
(e) Undertaking in respect of indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 of 1933 and will be governed by the
final adjudication of such issue.
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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 Greensboro, state of North Carolina, on February 26,
1998.
OAKWOOD HOMES CORPORATION
By: /s/ C. Michael Kilbourne
---------------------------------------------------
Name: C. Michael Kilbourne
Title: Executive Vice President, Chief Financial
Officer and Assistant Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person who signature
appears below constitutes and appoints Nicholas J. St. George, C. Michael
Kilbourne, Douglas R. Muir and Myles E. Standish, and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her own name, place and stead,
in any and all capacities (including his or her capacity as a director and/or
officer of Oakwood Homes Corporation), to sign any or all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to 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 indicated.
Signature Capacity Date
--------- -------- ----
/s/ Nicholas J. St. George Director and Chairman, President February 26, 1998
- --------------------------- and Chief Executive Officer
Nicholas J. St. George (Principal Executive Officer)
/s/ C. Michael Kilbourne Director and Executive Vice February 26, 1998
- ------------------------- President, Chief Financial
C. Michael Kilbourne Officer and Assistant Secretary
(Principal Financial Officer)
/s/ Douglas R. Muir Senior Vice President, Treasurer February 26, 1998
- -------------------- and Secretary (Principal
Douglas R. Muir Accounting Officer)
/s/ Dennis I. Meyer Director February 26, 1998
- ---------------------------------
Dennis I. Meyer
/s/ Kermit G. Phillips, II Director February 26, 1998
- ---------------------------------
Kermit G. Phillips, II
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Signature Capacity Date
--------- -------- ----
/s/ Roger W. Schipke Director February 26, 1998
- ---------------------------------
Roger W. Schipke
/s/ Lanty L. Smith Director February 26, 1998
- ---------------------------------
Lanty L. Smith
/s/ Sabin C. Streeter Director February 26, 1998
- ---------------------------------
Sabin C. Streeter
/s/ Francis T. Vincent, Jr. Director February 26, 1998
- ---------------------------------
Francis T. Vincent, Jr.
/s/ Clarence W. Walker Director February 26, 1998
- ---------------------------------
Clarence W. Walker
/s/ H. Michael Weaver Director February 26, 1998
- ---------------------------------
H. Michael Weaver
II-7
INDEX TO EXHIBITS
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture.
5.1 Opinion of Kennedy Covington Lobdell & Hickman, L.L.P. with
respect to legality.
12.1 Computation of Ratios of Earnings to Fixed Charges.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Kennedy Covington Lobdell & Hickman, L.L.P.
(included as part of Exhibit 5.1).
24.1 Power of Attorney (included on Pages II-6 and II-7 of the
Registration Statement).
25.1 Form T-1 Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 (Form T-1 Statement to be filed
upon selection of Trustee).