As filed with the Securities and Exchange Commission on March 9, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EQUIFAX INC.
(Exact name of Registrant as specified in its charter)
Georgia 57-0401110
(State or other jurisdiction of (I.R.S. Employer
organization) Identification Number)
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
(404) 885-8000
- ---------------------------------------------------------------------------
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Bruce S. Richards, Esq.
Corporate Vice President and General Counsel
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
(404) 885-8000
------------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Larry D. Ledbetter, Esq.
Kilpatrick Stockton LLP
1100 Peachtree Street, N.W.
Atlanta, Georgia 30309
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,
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. / /
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
Title of each class of Amount to Proposed Proposed Amount of
securities to be registered be registered maximum maximum registration fee
offering price aggregate
per unit offering price(1)
---------------------------------------------------------------------------------------------------------------------------
Debt Securities , $400,000,000 $118,000
Preferred Stock , Depositary
Shares,
Common Stock , Common Stock Purchase
Rights and Warrants
_______________________________
Estimated solely for the purpose of calculating the
registration fee. The aggregate initial public offering
price of the securities registered hereby will not exceed
$400,000,000 in U.S. dollars or the U.S. dollar equivalent
in foreign currency or currency units.
May be issued at an original issue discount. Includes Debt
Securities that may be issuable from time to time upon
exercise of Warrants.
Includes such presently indeterminable number of shares of
Preferred Stock as may be issuable from time to time upon
conversion of Debt Securities or exercise of Warrants and
includes shares of Preferred Stock with respect to which
Depositary Shares may be issued.
Includes such presently indeterminable number of shares of
Common Stock as may be issuable from time to time upon
conversion of Debt Securities or Preferred Stock or upon
exercise of Warrants.
Each share of Common Stock includes an attached Common Stock
purchase right. No separate consideration would be paid for
such rights. Their value, if any, will be reflected in the
price of any shares of Common Stock offered.
The amount to be registered and the proposed maximum
offering price per unit have been omitted pursuant to Rule
457(o) under the Securities Act of 1933.
The registration fee has been calculated pursuant to Rule
457(o) under the Securities Act of 1933.
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 this 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 _________, 1998
PROSPECTUS
$400,000,000
EQUIFAX INC.
SECURITIES
Equifax Inc., a Georgia corporation (the "Company"), may
offer from time to time (i) unsecured debt securities ("Debt
Securities") consisting of debentures, notes and/or other
unsecured evidences of indebtedness in one or more series. (ii)
shares of preferred stock, par value $0.01 per share ("Preferred
Stock"), in one or more series, (iii) shares of Preferred Stock
represented by depositary shares ("Depositary Shares"), (iv)
shares of common stock, $1.25 par value per share, with attached
rights to purchase shares of such common stock ("Common
Stock") or (v) warrants to purchase Debt Securities, Preferred
Stock, Depositary Shares or Common Stock ("Warrants", which
together with Debt Securities, Preferred Stock, Depositary Shares
and Common Stock are referred to as "Securities"), or any
combination of the foregoing, at an aggregate initial public
offering price not to exceed $400,000,000 (or the equivalent
thereof if Debt Securities are denominated in one or more foreign
currencies or foreign currency units), at prices and on terms to
be determined at or prior to the time of sale.
Specific terms of the Securities in respect of which this
Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement (as supplemented by any
applicable pricing supplement relating thereto, a "Prospectus
Supplement"), together with the terms of the offering of the
Securities, the initial public offering price and the net
proceeds to the Company from the sale thereof. The Prospectus
Supplement will set forth, among other matters, the following
with respect to the particular Securities: (i) in the case of
Debt Securities, the specific designation, aggregate principal
amount, authorized denominations, maturity, rate or method of
calculation of interest and dates for payment thereof, any
conversion, redemption, prepayment or sinking fund provisions,
and the currency, currencies or currency units in which
principal, premium, if any, or interest, if any, is payable, (ii)
in the case of Preferred Stock, the designation, number of
shares, liquidation preference, initial public offering price,
dividend rate (or method of calculation thereof), dates on which
dividends shall be payable and dates from which dividends shall
accrue, any redemption or sinking fund provisions and any voting
and conversion or exchange rights, (iii) in the case of
Depositary Shares, the aggregate number of Depositary Shares
offered, the description of Preferred Stock represented by
Depositary Shares and the fractional shares of such Preferred
Stock represented by each such Depositary Share, (iv) in the case
of Common Stock, the number of shares of Common Stock, and (v) in
the case of Warrants, the description of the securities subject
to the Warrants, the number of Warrants and the exercise price
thereof.
=====================
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 Company may sell Securities directly to purchasers or
through agents designated from time to time by the Company or to
or through underwriters or a group of underwriters which may be
managed by one or more underwriters. If any agents of the Company
or any underwriters are involved in the sale of Securities in
respect of which this Prospectus is being delivered, then the
names of such agents or underwriters and any applicable
commission or discount will be set forth in the applicable
Prospectus Supplement. The net proceeds to the Company from the
sale of Securities will be the initial public offering price of
such Securities less such discount, in the case of an offering
through an underwriter, or the purchase price of such Securities
less such commission, in the case of an offering through an
agent, and less, in each case, other expenses of the Company
associated with the issuance and distribution of such Securities.
-----------------------------
The date of this Prospectus is _____________, 1998.
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"). The Company has filed with the
Commission a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities
offered hereby. This Prospectus, which constitutes a part of the
Registration Statement, does not contain all information set
forth in the Registration Statement and reference is hereby made
to the Registration Statement and the exhibits thereto for
further information with respect to the Company and the
Securities offered hereby. Such reports, proxy statements,
Registration Statement and exhibits and other information omitted
from this Prospectus can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, and at its
Northeast Regional Office located at 7 World Trade Center, Suite
1300, New York, New York 10048 and Midwest Regional Office
located at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. 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.
Certain documents, including annual and quarterly reports and
proxy statements, filed by the Company with the Commission on and
after January 1, 1995 have been or will be electronically filed.
The Commission maintains a Web site that contains reports, proxy
and information statements and other information regarding
registrants that file electronically with the Commission at
(http://www.sec.gov). Certain of the Company's securities are
listed on the New York Stock Exchange and such reports, proxy
statements and other information may also be inspected at the
offices of the New York Stock Exchange, Inc., 70 Broad Street,
New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Annual Report of the Company on Form 10-K for the year
ended December 31, 1996, the Quarterly Reports of the Company on
Form 10-Q for the quarters ended March 31, 1997, June 30, 1997
and September 30, 1997, and the Current Reports of the Company on
Form 8-K dated July 17, 1997, July 31, 1997 and August 7, 1997
and the registration statements of the Company on Form 10, dated
December 31, 1964, and on Form 8-A, filed on November 2, 1995 are
incorporated by reference into this Prospectus. All documents filed
by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities contemplated hereby
shall be deemed to be incorporated by reference into this Prospectus
and to be made a part hereof from the respective dates of filing of
such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of the
Registration Statement and this Prospectus to the extent that a
statement contained herein, in the accompanying Prospectus
2
Supplement or in any 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 the Registration Statement or
this Prospectus.
Copies of the above documents (other than exhibits to such
documents unless such exhibits are specifically incorporated by
reference into such documents) may be obtained upon written or
oral request without charge from the Company, 1600 Peachtree
Street, N.W. Atlanta, Georgia 30309 (telephone number (404)
885-8000), Attention: Bruce S. Richards, Esq., Corporate Vice
President and General Counsel.
THE COMPANY
The Company is a global leader in providing financial
information and transaction processing solutions. The Company's
global operations include consumer and commercial credit
information services, payment services, software, modeling,
analytics, consulting and direct-to-consumer services. Through
an array of knowledge-based solutions, the Company facilitates
the transaction process for its customers by providing services
and systems that help in making credit decisions, authorizing and
processing credit card and check transactions, managing
receivables, predicting consumer behavior, marketing products and
managing risk. The Company serves a broad range of businesses,
including banking, finance, retail, credit card,
telecommunications/utilities and health care industries.
Founded in 1899 as a local credit bureau in Atlanta,
Georgia, and incorporated under the laws of Georgia in 1913, the
Company today operates as a diverse multinational corporation
with operations in 17 countries and sales in over 40 countries.
The address of its principal executive offices is 1600 Peachtree
Street, N.W., Atlanta, Georgia 30309, and the telephone number of
its principal executive offices is (404) 885-8000.
The Company regularly considers acquisition opportunities as
well as other forms of business combinations and divestitures.
Historically, the Company has been involved in numerous
transactions of varying magnitudes in which the consideration
included cash or securities (including common stock) or both. The
Company continues to evaluate and pursue transaction
opportunities as they arise. No assurance can be given with
respect to the timing, likelihood or the financial or business
effect of any possible transaction.
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement
for the specific offering of Securities, the net proceeds
received by the Company from the sale of the Securities will be
utilized by the Company as required from time to time for working
capital and expansion of the businesses of the Company and its
subsidiaries, for the repayment of existing indebtedness, and for
other general corporate purposes. To the extent not theretofore
utilized, the net proceeds received by the Company may be placed
in short-term investments, including commercial paper and
certificates of deposit, or utilized to reduce other short-term
borrowings.
3
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to
fixed charges for the Company and its consolidated subsidiaries
for the periods indicated. The Company to date has not issued
Preferred Stock; therefore, the ratios of earnings to combined
fixed charges and preferred stock dividends are the same as the
ratios of earnings to fixed charges set forth below.
Years Ended December 31
------------------------
1992 1993 1994 1995 1996 1997
---- ---- ---- ---- ---- -----
Ratio of earnings to fixed charges 14.4 8.1 10.1 9.6 10.6 11.1
_____________________________
On August 7, 1997, the Company completed the spin-off of its
Insurance Services industry segment. The spin-off was accomplished by the
Company's contribution of the business units which comprised the
Insurance Services segment into one wholly-owned subsidiary, ChoicePoint
Inc. All of the common stock of ChoicePoint was then distributed to
Equifax shareholders as a dividend, with one share of ChoicePoint common
stock distributed for each ten shares of Equifax common stock held. The
above calculations exclude the results of ChoicePoint Inc. for each year
presented.
The computation of the ratio of earnings to fixed charges is
based on applicable amounts of the Company and its consolidated
subsidiaries. "Earnings" consist of income before income taxes
and fixed charges. "Fixed charges" consist of interest on
indebtedness, amortization of debt discount and expense and an
estimated amount of rental expense that is deemed to be
representative of the interest factor.
4
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an indenture, as
supplemented from time to time (the "Indenture"), between the
Company and The First National Bank of Chicago, as Trustee (the
"Trustee"). The Indenture is subject to and governed by the
Trust Indenture Act of 1939, as amended. The statements made
under this heading relating to the Debt Securities and the
Indenture are summaries of the provisions thereof, and are
subject to, and are qualified in their entirety by reference to
the Indenture, including the definitions of certain terms
therein. Certain capitalized terms used below but not defined
herein have the meanings ascribed to them in the Indenture.
GENERAL
The Debt Securities will be unsecured obligations of the
Company, and the indebtedness represented thereby will rank on a
parity with the Company's other unsecured and unsubordinated
indebtedness. The Debt Securities may be issued in one or more
series. The particular terms of the Debt Securities being offered
(the "Offered Debt Securities"), any modifications of or
additions to the general terms of the Debt Securities and any
applicable Federal income tax considerations that may be
applicable in the case of the Offered Debt Securities will be
described in the Prospectus Supplement relating to the Offered
Debt Securities. Accordingly, for a description of the terms of
the Offered Debt Securities, reference must be made both to the
Prospectus Supplement relating thereto and the description of
Debt Securities set forth in this Prospectus.
The Company conducts its operations through its
subsidiaries. The rights of the Company and its creditors,
including the Holders (as defined below under "Certain
Definitions") of the Debt Securities, to participate in the
distribution of assets of any subsidiary upon the latter's
liquidation or reorganization or otherwise will be subject to the
prior claims of the subsidiary's creditors except to the extent
that the Company may itself be a creditor with recognized claims
against the subsidiary Accordingly, the Debt Securities will be
effectively subordinated to existing and future liabilities of
the Company's subsidiaries.
Reference is made to the Prospectus Supplement for the terms
of any series of Debt Securities being offered, including: (1)
the title of such Debt Securities; (2) the aggregate principal
amount of such Debt Securities; (3) the percentage of the
principal amount at which such Debt Securities will be issued
and, if other than the principal amount thereof, the portion of
the principal amount thereof payable upon declaration of
acceleration of the Maturity (as defined below under "Certain
Definitions") thereof; (4) the date or dates on which or periods
during which such Debt Securities may be issued, and the date or
dates on which the principal of (and premium, if any, on) such
Debt Securities will be payable; (5) the rate or rates at which
such Debt Securities will bear interest, if any, or the method by
which such rate or rates shall be determined, the date or dates
from which such interest, if any, shall accrue, the interest
payment dates on which such interest will be payable and, in the
case of Registered Securities (as defined below under "Certain
Definitions"), the regular record dates, if any, for the interest
5
payable on such interest payment dates; (6) the additional
offices, if any, where the principal of (and premium, if any) and
interest on such Debt Securities shall be payable; (7) the
obligation, if any, of the Company to redeem, repay or purchase
such Debt Securities pursuant to any sinking fund or analogous
provisions or at the option of the Holder and the period or
periods within which, or the date or dates on which, the prices
at which and the terms and conditions upon which such Debt
Securities shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation; (8) the period or periods
within which, or the date or dates on which, the price or prices
at which, and the terms and conditions upon which such Debt
Securities may be redeemed, if any, in whole or in part, at the
option of the Company or otherwise; (9) if the coin or currency
in which such Debt Securities shall be issuable is U.S. dollars,
the denominations of such Debt Securities if other than
denominations of $1,000 and any integral multiple thereof; (10)
whether such Debt Securities are to be issued as original issue
discount securities ("Discount Securities") and the amount of
discount at which such Debt Securities may be issued and, if
other than the principal amount thereof, the portion of the
principal amount of such Debt Securities which shall be payable
upon declaration of acceleration of the Maturity thereof upon an
Event of Default (as defined below under "Events of Default");
(11) provisions, if any, for the defeasance of such Debt
Securities; (12) whether such Debt Securities are to be issued as
Registered Securities or Bearer Securities (as defined below
under "Certain Definitions") or both, and, if Bearer Securities
are issued, whether any interest coupons appertaining thereto
("Coupons") will be attached thereto; (13) whether provisions for
payment of additional amounts or tax redemptions shall apply and,
if such provisions shall apply, such provisions: and, if Bearer
Securities of such series are to be issued, the applicable
procedures and certificates relating to the exchange of temporary
Global Securities for definitive Bearer Securities; (14) if other
than U.S. dollars, the currency, currencies or currency units
(the term "currency" as used herein will include currency units)
in which such Debt Securities shall be denominated or in which
payment of the principal of (and premium, if any) and interest on
such Debt Securities may be made; (15) if the principal of (and
premium, if any) or interest on such Debt Securities are to be
payable, at the election of the Company or a Holder thereof, in a
currency other than that in which such Debt Securities are
denominated or payable without such election, the period or
periods within which and the terms and conditions upon which,
such election may be made; (16) the date as of which such Debt
Securities shall be dated; (17) if the amount of payments of
principal of (and premium, if any) or interest on such Debt
Securities may be determined with reference to an index, the
manner in which such amounts shall be determined; (18) if such
Debt Securities are denominated or payable in a foreign currency,
any other terms concerning the payment of principal of (and
premium, if any) or any interest on such Debt Securities; (19)
any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to such Debt
Securities; (20) whether such Debt Securities shall be issued in
whole or in part in the form of one or more Global Securities
and, in such case, the depositary or any common depositary for
such Global Securities; and if such Debt Securities are issuable
only as Registered Securities, the manner in which and the
circumstances under which Global Securities representing such
Debt Securities may be exchanged for Registered Securities in
definitive form; and (21) any other terms not inconsistent with
the Indenture. (Section 3.01)
The Indenture provides that the aggregate principal amount
of Debt Securities that may be issued thereunder is unlimited.
The Debt Securities may be issued in one or more series, in each
case as authorized from time to time by the Board of Directors of
the Company or any committee thereof or any duly authorized officers.
(Section 3.01)
If Discount Securities are issued, the Federal income tax
consequences and other special considerations applicable to such
Discount Securities will be described in the Prospectus Supplement
relating thereto.
The general provisions of the Indenture do not contain any
provisions that would limit the ability of the Company to incur
indebtedness or that would afford holders of Debt Securities
protection in the event of a highly leveraged or similar
transaction involving the Company. However, the general
provisions of the Indenture do provide that neither the Company
nor any Subsidiary (as defined below under "Certain Definitions")
may subject certain of its property or assets to any mortgage or
other encumbrance unless the Debt Securities issued under the
Indenture are secured equally and ratably with or prior to such
other indebtedness thereby secured. See "Certain Covenants"
below. Reference is made to the Prospectus Supplement related to
the Offered Debt Securities for information with respect to any
deletions from, modifications of or additions to the Events of
Default or covenants of the Company that are described below,
including any addition of covenants or other provisions providing
event risk or similar protection.
All of the Debt Securities of a series need not be issued at
the same time, and may vary as to interest rate, maturity and
other provisions and unless otherwise provided, a series may be
reopened for issuance of additional Debt Securities of such
series. (Section 3.01)
DENOMINATIONS, EXCHANGE, REGISTRATION AND TRANSFER
Unless otherwise specified in the Prospectus Supplement, the
Debt Securities of any series shall be issuable only as
Registered Securities in denominations of $1,000 and any integral
multiple thereof and shall be payable only in U.S. dollars.
(Section 3.02) The Indenture also provides that Debt Securities
of a series may be issuable in global form. See "Book-Entry Debt
Securities." Unless otherwise indicated in the Prospectus
Supplement, Bearer Securities will have Coupons attached.
(Section 2.01)
Registered Securities of any series will be exchangeable for
other Registered Securities of the same series of like aggregate
principal amount and of like Stated Maturity (as defined below
under "Certain Definitions") and with like terms and conditions.
If so provided in the Prospectus Supplement, at the option of the
Holder thereof, to the extent permitted by law, any Bearer
Security of any series which by its terms is registrable as to
principal and interest may be exchanged for a Registered Security
of such series of like aggregate principal amount and of a like
Stated Maturity and with like terms and conditions, upon
surrender of such Bearer Security at the Corporate Trust Office
of the Trustee or at any other office or agency of the Company
designated for the purpose of making any such exchanges. Subject
to certain exceptions, any Bearer Security issued with Coupons
surrendered for exchange must be surrendered with all unmatured
Coupons and any matured Coupons in default attached thereto.
(Section 3.05)
7
Notwithstanding the foregoing, the exchange of Bearer
Securities for Registered Securities will be subject to the
provisions of United States income tax laws and regulations
applicable to Debt Securities in effect at the time of such
exchange. (Section 3.05) Except as otherwise specified in the
Prospectus Supplement, in no event may Registered Securities,
including Registered Securities received in exchange for Bearer
Securities, be exchanged for Bearer Securities. (Section 3.05)
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency of the
Company maintained for such purpose, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee, one or more new Registered Securities
of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such
series and of a like Stated Maturity and with like terms and
conditions. No service charge will be made for any transfer or
exchange of Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. (Section 3.05)
The Company shall not be required (i) to register, transfer
or exchange Debt Securities of any series during a period
beginning at the opening of business 15 days before the day of
the transmission of a notice of redemption of Debt Securities of
such series selected for redemption and ending at the close of
business on the day of such transmission, or (ii) to register,
transfer or exchange any Debt Security so selected for redemption
in whole or in part, except the unredeemed portion of any Debt
Security being redeemed in part. (Section 3.05)Certain Covenants
The Indenture contains, among other things, the following
covenants:
LIMITATION UPON MORTGAGES AND LIENS. Neither the Company
nor a Subsidiary may create or assume, except in favor of the
Company or a Wholly-Owned Subsidiary (as defined below under
"Certain Definitions"), any mortgage, pledge, lien or encumbrance
upon any Principal Facility (as defined below under "Certain
Definitions") or any stock of any Subsidiary or indebtedness of
any Subsidiary to the Company or any other Subsidiary without
equally and ratably securing the Outstanding Debt Securities.
This limitation will not apply to certain permitted encumbrances
as described in the Indenture, including (a) purchase money
mortgages entered into within specified time limits; (b) liens
extending, renewing or refunding any liens permitted by clause
(a) of this covenant; (c) liens existing on acquired property;
(d) certain tax, materialmen's, mechanic's and judgment liens,
certain liens arising by operation of law and certain other
similar liens; (e) liens in connection with certain government
contracts; (f) certain mortgages, pledges, liens or encumbrances
in favor of any state or local government or governmental agency
in connection with certain tax-exempt financings; (g) liens to
secure the cost of construction or improvement of any property
entered into within specified time limits; and (h) mortgages,
pledges, liens and encumbrances not otherwise permitted if the
sum of the indebtedness thereby secured plus the aggregate sales
price of property involved in sale and leaseback transactions
referred to in clause (a) under " Limitation Upon Sale and
Leaseback Transactions" below does not exceed 15% of Consolidated
8
Stockholders' Equity (as defined below under "Certain
Definitions"). (Section 12.07)
LIMITATION UPON SALE AND LEASEBACK TRANSACTIONS. The
Company and any Subsidiary will be prohibited from selling any
Principal Facility owned on the date of the Indenture with the
intention of taking back a lease thereof, other than a temporary
lease (a lease of not more than 36 months) with the intent that
the use of the property by the Company or such Subsidiary will be
discontinued at or before the expiration of such period, unless
(a) the sum of the sale price of property involved in sale and
leaseback transactions not otherwise permitted plus all
indebtedness secured by mortgages, pledges, liens and
encumbrances referred to in clause (h) under " Limitation Upon
Mortgages and Liens" above does not exceed 15% of Consolidated
Stockholders' Equity; or (b) the greater of the net proceeds of
such sale or the fair market value of such Principal Facility
(which may be conclusively determined by the Board of Directors
of the Company) are applied within 120 days to the optional
retirement of Outstanding Debt Securities or to the optional
retirement of other Funded Debt (as defined below under "Certain
Definitions") of the Company ranking on a parity with the Debt
Securities. (Section 12.08)
EVENTS OF DEFAULT
Under the Indenture, "Event of Default" with respect to the
Debt Securities of any series means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law, pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body): (1) default in the payment of any interest
upon any Debt Security or any payment with respect to the
Coupons, if any, of such series when it becomes due and payable,
and continuance of such default for a period of 30 days; (2)
default in the payment of the principal of (and premium, if any,
on) any Debt Security of such series at its Maturity; (3) default
in the deposit of any sinking fund payment, when and as due by
the terms of a Debt Security of such series; (4) default in the
performance, or breach of any covenant or warranty in the
Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in the Indenture
specifically dealt with or which expressly has been included in
the Indenture solely for the benefit of Debt Securities of a
series other than such series), and continuance of such default
or breach for a period of 60 days after there has been given to
the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such series, a written notice
specifying such default or breach and requiring it to be
remedied; (5) default (A) in the payment of any scheduled
principal of or interest on any Indebtedness of the Company or
any Subsidiary of the Company (other than Debt Securities of such
series), aggregating more than $20 million in principal amount,
when due after giving effect to any applicable grace period or
(B) in the performance of any other term or provision of any
Indebtedness of the Company or any Subsidiary of the Company
(other than Debt Securities of such series) in excess of $20
million principal amount that results in such Indebtedness
becoming or being declared due and payable prior to the date on
which it would otherwise become due and payable, and such
acceleration shall not have been rescinded or annulled, or such
9
Indebtedness shall not have been discharged, within a period of
15 days after there has been given to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Debt Securities of such
series, a written notice specifying such default or defaults; (6)
the entry against the Company or any Subsidiary of the Company of
one or more judgments, decrees or orders by a court from which no
appeal may be or is taken for the payment of money, either
individually or in the aggregate, in excess of $20 million, and
the continuance of such judgment, decree or order unsatisfied and
in effect for any period of 45 consecutive days after the amount
thereof is due without a stay of execution; (7) certain events of
bankruptcy, insolvency or reorganization with respect to the
Company; or (8) any other Event of Default provided with respect
to Debt Securities of that series pursuant to the Indenture.
(Section 5.01)
The Indenture requires the Company to file with the Trustee,
annually, an officer's certificate as to the Company's compliance
with all conditions and covenants under the Indenture. (Section
12.02) The Indenture provides that the Trustee may withhold
notice to the Holders of a series of Debt Securities of certain
defaults that are cured within 30 days (except payment defaults
on such Debt Securities) if it determines in good faith that the
withholding of such notice is in the interest of the Holders of
such series of Debt Securities. (Section 6.02)
If an Event of Default with respect to Debt Securities of
any series at the time Outstanding occurs and is continuing, then
in every case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of such
series may declare the principal amount (or, if any Debt
Securities of such series are Discount Securities, such portion
of the principal amount of such Discount Securities as may be
specified in the terms of such Discount Securities) 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 Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and
payable. Upon payment of such amount in the currency in which
such Debt Securities are denominated (except as otherwise
provided in the Indenture or the Prospectus Supplement), all
obligations of the Company in respect of the payment of principal
of the Debt Securities of such series shall terminate. (Section
5.02)
Subject to the provisions of the Indenture relating to the
duties of the Trustee, in case an Event of Default with respect
to Debt Securities of a particular series shall occur and be
continuing, the Trustee shall be under no obligation to exercise
any of its rights or powers under the Indenture at the request,
order or direction of any of the Holders of Debt Securities of
that series, unless such Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request. (Section 6.03) Subject to such provisions for the
indemnification of the Trustee, the Holders of a majority in
principal amount of the Outstanding Debt Securities of such
series shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
Trustee under the Indenture, or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities of
10
that series (Section 5.12)
At any time after such a declaration of acceleration with
respect to Debt Securities of any series has been made and before
a judgment or decree for payment of the money due has been
obtained by the Trustee as provided in the Indenture, the Holders
of a majority in principal amount of the Outstanding Debt
Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if (1) the Company has paid or deposited with the
Trustee a sum in the currency in which such Debt Securities are
denominated (except as otherwise provided in the Indenture or the
applicable Prospectus Supplement) sufficient to pay (A) all
overdue installments of interest on all Debt Securities or all
overdue payments with respect to any Coupons of such series; (B)
the principal of (and premium, if any, on) any Debt Securities of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities; (C) to the
extent that payment of such interest is lawful, interest upon
overdue installments of interest on each Debt Security of such
series or upon overdue payments on any Coupons of such series at
a rate established for such series; and (D) all sums paid or
advanced by the Trustee and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel; and (2) all Events of Default with respect to Debt
Securities of such series, other than the nonpayment of the
principal of Debt Securities of such series which have become due
solely by such declaration of acceleration, have been cured or
waived as provided in the Indenture. No such rescission and
waiver will affect any subsequent default or impair any right
consequent thereon. (Section 5.02).
MERGER OR CONSOLIDATION
The Indenture provides that the Company may not consolidate
with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to
any Person, unless (1) the corporation formed by such
consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety
(the "successor corporation") is a corporation organized and
existing under the laws of the United States or any State or the
District of Columbia and expressly assumes by a supplemental
indenture the due and punctual payment of the principal of (and
premium, if any) and interest on all the Debt Securities and the
performance of every covenant of the Indenture on the part of the
Company to be performed or observed; (2) immediately after giving
effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time, or both, would become an
Event of Default, shall have happened and be continuing; (3) if,
as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the
Company would become subject to a mortgage, pledge, lien,
security interest or other encumbrance which would not otherwise
be permitted by the Indenture without making effective provision
whereby the Outstanding Debt Securities and any other
indebtedness of the Company then entitled thereto will be equally
and ratably secured with any and all indebtedness and obligations
secured thereby, the Company or such successor corporation or
Person, as the case may be, will take such steps as will be
11
necessary effectively tosecure all Debt Securities equally and
ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an officers'
certificate and an opinion of counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with the Indenture provisions and
that all conditions precedent therein provided for relating to
such transaction have been complied with. (Section 10.01)
MODIFICATION OR WAIVER
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may modify the
Indenture for any of the following purposes: (1) to evidence the
succession of another corporation to the Company and the
assumption by such successor of the covenants of the Company in
the Indenture and in the Debt Securities; (2) to add to the
covenants of the Company, for the benefit of the Holders of all
or any series of Debt Securities and the Coupons, if any,
appertaining thereto and if such covenants are to be for the
benefit of less than all series, stating that such covenants are
expressly being included solely for the benefit of such series),
or to surrender any right or power conferred in the Indenture
upon the Company; (3) to add any additional Events of Default
(and if such Events of Default are to be applicable to less than
all series, stating that such Events of Default are expressly
being included solely to be applicable to such series); (4) to
add or change any of the provisions of the Indenture to such
extent as shall be necessary to permit or facilitate the issuance
of Debt Securities of any series in bearer form, registrable or
not registrable, and with or without Coupons, to permit Bearer
Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit the
issuance of Debt Securities of any series in uncertificated form,
provided that any such action shall not adversely affect the
interests of the Holders of Debt Securities of any series or any
related Coupons in any material respect; (5) to change or
eliminate any of the provisions of the Indenture, provided that
any such change or elimination will become effective only when
there is no Outstanding Debt Security or Coupon of any series
created prior to such modification which is entitled to the
benefit of such provision and as to which such modification would
apply; (6) to secure the Debt Securities; (7) to supplement any
of the provisions of the Indenture to such extent as is necessary
to permit or facilitate the defeasance and discharge of any
series of Debt Securities, 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
or any related Coupons in any material respect; (8) to establish
the form or terms of Debt Securities and Coupons, if any, of any
series as permitted by the Indenture; (9) to evidence and provide
for the acceptance of appointment thereunder by a successor
Trustee with respect to one or more series of Debt Securities and
to add to or change any of the provisions of the Indenture as is
necessary to provide for or facilitate the administration of the
trusts thereunder by more than one Trustee; or (10) to cure any
ambiguity, to correct or supplement any provision therein which
may be defective or inconsistent with any other provision
therein, or to make any other provisions with respect to matters
or questions arising under the Indenture which will not be
12
inconsistent with any provision of the Indenture; provided such
other provisions shall not adversely affect the interests of the
Holders of Outstanding Debt Securities or Coupons, if any, of any
series created prior to such modification in any material respect
(Section 11.01)
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Debt Securities of each
series affected by such modification voting separately, the
Company and the Trustee may modify the Indenture for the purpose
of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of
modifying in any manner the rights of the Holders under the
Indenture of such Debt Securities; provided, however, that no
such modification may, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Debt Security, or reduce the
principal amount thereof or the interest thereon or any premium
payable upon redemption thereof, or change the Stared Maturity of
or reduce the amount of any payment to be made with respect to
any Coupon, or change the currency or currencies in which the
principal of (and premium, if any) or interest on such Debt
Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof, or
adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone
the date fixed for, any payment under any sinking fund or
analogous provisions for any Debt Security, or impair the right
to institute suit for the enforcement of any payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or limit the obligation of the
Company to maintain a paying agency outside the United States for
payments on Bearer Securities; (2) reduce the percentage in
principal amount of the Outstanding Debt Securities of any
series, the consent of whose Holders is required for any
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; or (3) modify any of
the provisions of the Indenture relating to modifications and
waivers of defaults and 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 of each series affected
thereby. (Section 11.02)
A modification which changes or eliminates any covenant or
other provision of the Indenture with respect to one or more
particular series of Debt Securities and Coupons, if any, or
which modifies the rights of the Holders of Debt Securities and
Coupons of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under the
Indenture of the Holders of Debt Securities and Coupons, if any,
of any other series. (Section 11.02)
The Holders of not less than a majority in principal amount
of the Outstanding Debt Securities of any series may on behalf of
the Holders of all the Debt Securities of any such series waive
any past default under the Indenture with respect to such series
and its consequences, except a default (1) in the payment of the
13
principal of (or premium, if any) or interest on any Debt
Security of such series, or in the payment of any sinking fund
installment or analogous obligation with respect to the Debt
Securities of such series; or (2) in respect of a covenant or
provision hereof which pursuant to the second paragraph under
"Modification or Waiver" cannot be modified or amended without
the consent of the Holder of each Outstanding Debt Security of
such series affected. Upon any such waiver, such default will
cease to exist, and any Event of Default arising therefrom will
be deemed to have been cured, for every purpose of the Debt
Securities of such series under the Indenture, but no such waiver
will extend to any subsequent or other default or impair any
right consequent thereon. (Section 5.13)
The Company may omit in any particular instance to comply
with certain covenants in the Indenture (including, if so
specified in the Prospectus Supplement, any covenant not set
forth in the Indenture but specified in the Prospectus Supplement
to be applicable to the Debt Securities of any series, except as
otherwise provided in the Prospectus Supplement, and the
covenant requiring the Company to maintain its corporate
existence and the covenants relating to the limitation upon
mortgages and liens and the limitation upon sale and leaseback
transactions) with respect to the Debt Securities of any series
if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Debt Securities
of such series either waive such compliance in such instance or
generally waive compliance with such provisions, but no such
waiver may extend to or affect any term, provision or condition
except to the extent expressly so waived, and, until such waiver
becomes effective, the obligations of the Company and the duties
of the Trustee in respect of any such provision will remain in
full force and effect. (Section 12.09)
DISCHARGE, LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Indenture with respect to the Debt Securities of any
series may be discharged, subject to certain terms and
conditions, when (1) either (A) all Debt Securities and the
Coupons, if any, of such series have been delivered to the
Trustee for cancellation, or (B) all Debt Securities and the
Coupons, if any, of such series not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable at their Stated Maturity within one
year, or (iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice by the Trustee, and the Company, in the case of (i), (ii)
or (iii) of subclause (B), has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust for such
purpose an amount in the currency in which such Debt Securities
are denominated sufficient to pay and discharge the entire
indebtedness on such Debt Securities for principal (and premium,
if any) and interest to the date of such deposit (in the case of
Debt Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be: provided,
however, in the event a petition for relief under any applicable
Federal or state bankruptcy, insolvency or other similar law is
filed with respect to the Company within 91 days after the
deposit and the Trustee is required to return the deposited money
to the Company, the obligations of the Company under the
Indenture with respect to such Debt Securities will not be deemed
terminated or discharged; (2) the Company has paid or caused to
14
be paid all other sums payable under the Indenture by the
Company; and (3) the Company has delivered to the Trustee an
officers' certificate and an opinion of counsel each stating that
all conditions precedent therein provided relating to the
satisfaction and discharge of the Indenture with respect to such
series have been complied with. (Section 4.01)
If provision is made for the defeasance of Debt Securities
of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in U.S.
dollars, then the provisions of the Indenture relating to
defeasance shall be applicable except as otherwise specified in
the Prospectus Supplement for Debt Securities of such series,
Defeasance provisions, if any, for Debt Securities denominated in
a foreign currency or currencies or for Bearer Securities may be
specified in the Prospectus Supplement. (Section 15.01)
At the Company's option, either (1) the Company shall be
deemed to have been discharged (as defined below under "Certain
Definitions") from its obligations with respect to Debt
Securities of any series ("legal defeasance option") or (2) the
Company shall cease to be under any obligation to comply with
certain provisions of the Indenture relating to mergers and
consolidations of the Company and the provisions relating to
limitations upon mortgages and liens and limitations upon sale
and leaseback transactions with respect to Debt Securities of any
series (and, if so specified, any other obligation of the Company
or restrictive covenant added for the benefit of such series)
("covenant defeasance option") at any time after the following
conditions have been satisfied: (A) the Company shall have
deposited or caused to be deposited irrevocably with the Trustee
as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Debt
Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below under "Certain
Definitions") which through the payment of interest and principal
in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money
in an amount, or (iii) a combination of (i) and (ii), sufficient,
in the opinion (with respect to (i) and (ii)) of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay
and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and
interest on, the Outstanding Debt Securities of such series on
the dates such installments of interest or principal and premium
are due; (B) such deposit shall not cause the Trustee with
respect to the Debt Securities of that series to have a
conflicting interest with respect to the Debt Securities of any
series; (C) such deposit will not result in a breach or violation
of, or constitute a default under, the Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound; (D) if the Debt Securities of such series are
then listed on any national securities exchange, the Company
shall have delivered to the Trustee an opinion of counsel or a
letter or other document from such exchange to the effect that
the Company's exercise of its legal defeasance option or the
covenant defeasance option, as the case may be, would not cause
such Debt Securities to be delisted; (E) no Event of Default or
event (including such deposit) which, with notice or lapse of
time or both, would become an Event of Default with respect to
the Debt Securities of such series shall have occurred and be
15
continuing on the date of such deposit and, with respect to the
legal defeasance option only, no Event of Default under the
provisions of the Indenture relating to certain events of
bankruptcy or insolvency or event which with the giving of notice
or lapse of time, or both, would become an Event of Default under
such bankruptcy or insolvency provisions shall have occurred and
be continuing on the 91st day after such date; and (F) the
Company shall have delivered to the Trustee an opinion of counsel
or a ruling of the Internal Revenue Service to the effect that
the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as
a result of such deposit, defeasance or discharge.
Notwithstanding the foregoing, if the Company exercises its
covenant defeasance option and an Event of Default under the
provisions of the Indenture relating to certain events of
bankruptcy or insolvency or event which with the giving of notice
or lapse of time, or both, would become an Event of Default under
such bankruptcy or insolvency provisions shall have occurred and
be continuing on the 91st day after the date of such deposit, the
obligations of the Company referred to under the definition of
covenant defeasance option with respect to such Debt Securities
shall be reinstated. (Section 15.05)
PAYMENT AND PAYING AGENTS
If Debt Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place of
Payment for such Debt Securities an office or agency where such
Debt Securities may be presented or surrendered for payment,
where such Debt Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of such Debt Securities and the Indenture may
be served. If Debt Securities of a series are issuable as Bearer
Securities, the Company will maintain (1) in the Borough of
Manhattan, The City and State of New York, an office or agency
where any Registered Securities of such series may be presented
or surrendered for payment, where any Registered Securities of
such series may be surrendered for registration of transfer,
where Debt Securities of such series may be surrendered for
exchange, where notices and demands to or upon the Company in
respect of such Debt Securities and the Indenture may be served
and where Bearer Securities of such series and related Coupons
may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (2)
subject to any laws or regulations applicable thereto, in a Place
of Payment for such series which is located outside the United
States, an office or agency where such Debt Securities and
related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on such Debt
Securities, if so provided in such series); provided, however,
that if such Debt Securities are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland, the Luxembourg
Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for such Debt Securities in
London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as such Debt
Securities are listed on such exchange, and (3) subject to any
laws or regulations applicable thereto, in a Place of Payment for
such Debt Securities located outside the United States an office
or agency where any Registered Securities of such series may be
16
surrendered for registration of transfer, where such Debt
Securities may be surrendered for exchange and where notices and
demands to or upon the Company in respect of such Debt Securities
and the Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee (in the
case of Registered Securities) and at the principal London office
of the Trustee (in the case of Bearer Securities), and the
Company has appointed the Trustee as its agent to receive all
presentations, surrenders, notices and demands. (Section 12.03)
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank
located in the United States; provided, however, that, if the
Debt Securities of a series are denominated and payable in U.S.
dollars, payment of principal of and any premium and interest on
such Debt Securities, if so provided in the Prospectus Supplement
shall be made at the office of the Company's Paying Agent in the
Borough of Manhattan, the City and State of New York, if (but
only if) payment in U.S. dollars of the full amount of such
principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with the
Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions. (Section 12.03)
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in
part in global form that will be deposited with, or on behalf of,
a depositary identified in the Prospectus Supplement. Global
securities may be issued in either registered or bearer form and
in either temporary or permanent form (each a "Global Security").
Payments of principal of (premium, if any) and interest on Debt
Securities represented by a Global Security will be made by the
Company to the Trustee and then by the Trustee to the depositary.
The Company anticipates that any Global Securities will be
deposited with, or on behalf of, The Depository Trust Company,
New York, New York ("DTC"), that such Global Securities will be
registered in the name of DTC's nominee, and that the following
provisions will apply to the depositary arrangements with respect
to any such Global Securities. Additional or differing terms of
the depositary arrangements will be described in the Prospectus
Supplement relating to a particular series of Debt Securities
issued in the form of Global Securities.
So long as DTC or its nominee is the registered owner of a
Global Security, DTC or its nominee, as the case may be, will be
considered the sole Holder of the Debt Securities represented by
such Global Security for all purposes under the Indenture. Except
as provided below, owners of beneficial interests in a Global
Security will not be entitled to have Debt Securities represented
by such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of Debt
Securities in certificated form and will not be considered the
17
owners or Holders thereof under the Indenture. The laws of some
states require that certain purchasers of securities take
physical delivery of such securities in certificated form;
accordingly, such laws may limit the transferability of
beneficial interests in a Global Security.
If DTC is at any time unwilling or unable to continue as
depositary, or ceases to be a clearing agency registered under
the Exchange Act, and a successor depositary is not appointed by
the Company within 90 days, the Company will issue individual
Debt Securities in certificated form in exchange for the Global
Securities. In addition, the Company may at any time, and in its
sole discretion, determine not to have any Debt Securities
represented by one or more Global Securities and, in such event,
will issue individual Debt Securities in certificated form in
exchange for the relevant Global Securities. If Registered
Securities of any series shall have been issued in the form of
one or more Global Securities and if an Event of Default with
respect to the Debt Securities of such series shall have occurred
and be continuing, the Company will issue individual Debt
Securities in certificated form in exchange for the relevant
Global Securities.
The following is based on information furnished by DTC:
DTC will act as securities depositary for Debt Securities
represented by one or more Global Securities. The Debt Securities
will be issued as fully-registered securities registered in the
name of Cede & Co. (DTC's partnership nominee). One fully-
registered Global Security will be issued for each issue of the
Debt Securities, each in an aggregate principal amount of such
issue, and will be deposited with DTC. If, however, the aggregate
principal amount of any issue exceeds the maximum principal
amount (if any) permitted by DTC, one Global Security will be
issued with respect to such maximum principal amount and an
additional Global Security will be issued with respect to any
remaining principal amount of such issue.
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 Participants' accounts, 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.
18
Purchases of Debt Securities represented by one or more
GlobalSecurities under DTC's system must be made by or through
Direct Participants, which will receive a credit for the Global
Securities on DTC's records. The ownership interest of each
beneficial owner of each Global Security ("Beneficial Owner") is
in turn recorded on the Direct and Indirect Participants'
records. A Beneficial Owner will not receive written confirmation
from DTC of its purchase, but such Beneficial Owner is expected
to receive a written confirmation providing details of such
transaction, as well as periodic statements of its holdings, from
the Direct or Indirect Participant through which such Beneficial
Owner entered into such transaction. Transfers of ownership
interests in Global 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
Securities, except in the event that use of the book-entry system
for one or more Global Securities is discontinued.
To facilitate subsequent transfers, all Global Securities
deposited by Participants with DTC are registered in the name of
DTC's partnership nominee, Cede & Co. The deposit of Global
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 Debt Securities;
DTC records reflect only the identify of the Direct Participants
to whose accounts Global Securities are credited, which may or
may not be the Beneficial Owners. The Participants remain
responsible for keeping account of their holdings on behalf of
their customers.
Delivery 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 are governed by arrangements
among them, subject to any statutory or regulatory requirements
as may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect
to the Global Securities. Under its usual procedures, DTC will
mail an "Omnibus Proxy" to the issuer 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 Debt Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Principal and interest payments on the Global 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 is
the case with 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, the Paying
Agent 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 or the Paying Agent, disbursement of such payments to
Direct Participants is the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
19
A Beneficial Owner shall give notice to elect to have its
Global Securities purchased or tendered, through its Participant,
to the Paying Agent, and shall effect delivery of such Global
Securities by causing the Direct Participant to transfer the
Participant's interest in the Global Securities, on DTC's
records, to the Paying Agent. The requirement for physical
delivery of Global Securities in connection with a demand for
purchase or a mandatory purchase will be deemed satisfied when
the ownership rights in the Global Securities are transferred by
Direct Participants on DTC's records.
DTC may discontinue providing its services as securities
depositary with respect to the Debt Securities at any time by
giving reasonable notice to the Company or the Agents. Under such
circumstances, in the event that a successor securities
depositary is not appointed within 90 days, certificates
representing Debt Securities will be printed and delivered in
exchange for the Debt Securities represented by the Global
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, certificates representing Debt
Securities will be printed and delivered in exchange for the Debt
Securities represented by the Global Securities held by DTC.
None of the Company, any underwriter or agent, the Trustee,
any applicable Paying Agent or the registrar of any Debt
Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests in a Global Security, or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
THE TRUSTEE UNDER THE INDENTURE
The First National Bank of Chicago is one of a number of banks
with which the Company maintains ordinary banking relationships
and from which the Company has obtained credit facilities and
lines of credit.
CERTAIN DEFINITIONS
Set forth below is a summary of certain defined terms as
used in the Indenture. Reference is made to the Indenture for
the full definition of all such terms.
"Bearer Security" means any Debt Security (with or without
Coupons), which is payable to bearer and title to which passes by
delivery only, but does not include any Coupons. (Section 1.01)
"Consolidated Stockholders' Equity", at any time, means the
total stockholders' equity of the Company and its consolidated
subsidiaries, determined on a consolidated basis in accordance
with generally accepted accounting principles, as of the end of
the most recently completed fiscal quarter of the Company for
which financial information is then available. (Section 1.01)
"discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and
obligations under, the Debt Securities of such series and to have
satisfied all the obligations under the Indenture relating to the
Debt Securities of such series, except (1) the rights of Holders
of Debt Securities of such series to receive, from the trust fund
described under "Discharge, Legal Defeasance and Covenant
Defeasance" above, payment of the principal of (and premium, if
any) and interest on such Debt Securities when such payments are;
(2) the Company's obligations with respect to the Debt Securities
of such series under the provisions relating to exchanges,
transfers and replacement of Debt Securities, the maintenance of
an office or agency of the Company and the defeasance trust fund;
(3) the rights, powers, trusts, duties and immunities of the
Trustee thereunder and the Company's obligation to pay the fees
and expenses of the Trustee; and (4) the provisions of the
Indenture relating to defeasance. (Section 15.03)
"Funded Debt" means any indebtedness for money borrowed,
created, issued, incurred, assumed or guaranteed which would, in
accordance with generally accepted accounting practice, be
classified as long-term debt, but in any event including all
indebtedness for money borrowed, whether secured or unsecured,
maturing more than one year or extendible at the option of the
obligor to a date more than one year, after the date of
determination thereof (excluding any amount thereof included in
current liabilities). (Section 1.01)
"Holder" means, with respect to a Registered Security, the
Person in whose name a Registered Security is registered in the
Security Register, and with respect to a Bearer Security or a
Coupon, the bearer thereof. (Section 1.01)
"Indebtedness" means (1) any liability of any Person (A) for
borrowed money, or (B) evidenced by a bond, note, debenture or
similar instrument (including purchase money obligations but
excluding trade payables), or (C) for the payment of money
relating to a lease that is required to be classified as a
capitalized lease obligation in accordance with generally
accepted accounting principles, or (D) preferred or preference
stock of a Subsidiary of the Company held by Persons other than
the Company or a Subsidiary of the Company; (2) any liability of
others described in the preceding clause (1) that the Person has
guaranteed, that is recourse to such Person or that is otherwise
its legal liability; and (3) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (1) and (2) above.
(Section 1.01)
"Maturity" when used with respect to any Debt Security means
the dare on which the principal of such Debt Security or an
installment of principal becomes due and payable as provided
therein or in the Indenture, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment at
the option of the Holder thereof, required repurchase or
otherwise. (Section 1.01 )
"Outstanding" when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities
theretofore authenticated and delivered under the Indenture,
except as provided in the Indenture. (Section 1.01)
"Principal Facility" means the real property, fixtures,
machinery and equipment relating to any facility owned by the
Company or any Subsidiary, except any facility that, in the
opinion of the Board of Directors, is not of material importance
to the business conducted by the Company and its Subsidiaries,
taken as a whole. (Section 1.01)
"Registered Securities" means any Debt Security in the form
established pursuant to Section 2.01 of the Indenture which is
registered as to principal and interest in the Security Register.
(Section 1.01)
"Subsidiary" means any corporation of which at least a
majority of the outstanding stock having by the terms thereof
ordinary voting power to elect a majority of the directors of
such corporation, irrespective of whether or not at the time
stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any
contingency, is at the time, directly or indirectly, owned or
controlled by the Company or by one or more Subsidiaries thereof,
or by the Company and one or more Subsidiaries. (Section 1.01)
"U.S. Government Obligations" means securities that are (1)
direct obligations of the United States for the payment of which
its full faith and credit is pledged, or (2) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States, which, in either case under clauses (1) or
(2), are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a
bank as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for
the account of the holder of such depository receipt: provided
that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian
in respect of the U S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government
Obligation evidenced by such depository receipt. (Section 15.05)
"Wholly-Owned Subsidiary" means a Subsidiary of which all of
the outstanding voting stock (other than directors' qualifying
shares) is at the time, directly or indirectly, owned by the
Company, or by one or more Wholly-Owned Subsidiaries of the
Company or by the Company and one or more Wholly-Owned
Subsidiaries. (Section 1.01)
DESCRIPTION OF CAPITAL STOCK
As of the date of this Prospectus, the Company's authorized
capital stock consists of 300,000,000 shares of Common Stock, par
value $1.25 per share, and 10,000,000 shares of Preferred Stock,
par value $0.01 per share. As of December 31, 1997, approximately
142,608,916 shares of Common Stock were issued and outstanding.
No shares of Preferred Stock are currently outstanding. The
following summary description of the capital stock of the Company
does not purport to be complete and is qualified in its entirety
by reference to the Company's Amended and Restated Articles of
Incorporation (the "Articles of Incorporation"), its Bylaws and
Georgia corporate law. See "Available Information."
COMMON STOCK
Holders of Common Stock are entitled to one vote for each
share held on all matters submitted to a vote of shareholders and
do not have cumulative voting rights. Any director standing for
election may be elected by holders of a plurality of the shares
of Common Stock entitled to vote at a meeting of shareholders at
which the holders of a majority of the outstanding shares
ofCommon Stock are present, in person or by proxy. Holders of
Common Stock are entitled to receive ratably such dividends, if
any, as may be declared by the Board of Directors out of funds
legally available therefor, subject to any preferential dividend
rights of outstanding Preferred Stock and certain dividend
limitations contained in the Company's outstanding senior
promissory notes. Upon the liquidation, dissolution or winding up
of the Company, the holders of Common Stock are entitled to
receive ratably the net assets of the Company available after the
payment of all debts and other liabilities and subject to the
prior rights of any outstanding Preferred Stock. Holders of
Common Stock have no preemptive, subscription, redemption or
conversion rights. All outstanding shares of Common Stock are
duly authorized, validly issued, fully paid and nonassessable.
The rights, preferences and privileges of holders of Common Stock
are subject to, and may be adversely affected by, the rights of
the holders of shares of any series of Preferred Stock which the
Company may designate and issue in the future.
STOCK PURCHASE RIGHTS
Shares of Common Stock have attached to them certain Common
Stock purchase rights ("Rights") pursuant to a Rights Agreement
dated as of October 25, 1995, between the Company and SunTrust
Bank, Atlanta, Georgia, as agent. A Right entitles the
registered holder to purchase from the Company one share of
Common Stock at a price of $92.50 (subject to adjustment to
prevent dilution). Rights become exercisable after the close of
business on the tenth calendar day following the earliest to
occur of the following events: (1) a public announcement that
someone (or group) has acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding
Common Stock (an "Acquiring Person"), (2) the commencement of a
tender offer or exchange offer by someone (or group) that would
result in the level of ownership described in (1) above, and (3)
the first date of public announcement of a "Flip-in Event" or
"Flip-over Event" as described in the Company s Registration
Statement on Form 8-A, dated November 2, 1995, including any
amendments thereto. The Rights expire on November 6, 2005.
Under certain circumstances, including within certain time
periods, the Company may exchange one share of Common Stock for
each Right, subject to adjustment, and it may redeem the Rights
for $0.01 each.
The Rights have anti-takeover effects. They will cause
substantial dilution to a person or group that attempts to
acquire the Company on terms not approved by the Board of
Directors, except pursuant to an offer conditioned on a
substantial number of Rights being acquired. The Rights should
not interfere with any merger or other business combination
approved by the Board of Directors, because (subject to
limitations) the Rights may be redeemed by the Company prior to
the time the Rights would otherwise become exercisable, or if
later, the time that a person or group has become an Acquiring
PREFERRED STOCK
Under its Articles of Incorporation, the Company is
authorized to issue up to 10,000,000 shares of Preferred Stock,
par value $0.01 per share. There are no restrictions in the
Articles of Incorporation on the repurchase or redemption of
shares of Preferred Stock. Preferred Stock may be issued from
time to time by the Board of Directors of the Company, without
shareholder approval, in such series and with such preferences,
conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and
conditions of redemption, as may be fixed by the Board of
Directors in the resolution authorizing the issuance; provided
however, that holders of Preferred Stock shall not be entitled to
more than the greater of (i) one vote per $100 liquidation value
or (ii) one vote per share. The holders of Preferred Stock will
not be entitled to vote on any matter separately as a class,
except to the extent specified with respect to each series with
respect to any amendment or alteration of the provisions of the
Articles of Incorporation that would adversely effect the powers,
preferences, or special rights of the applicable series of
Preferred Stock. The issuance of Preferred Stock by the Board of
Directors could adversely affect the rights of holders of shares
of Common Stock since Preferred Stock may be issued having
preference with respect to dividends and in liquidation over the
Common Stock, and have voting rights, contingent or otherwise,
that could dilute the voting rights, net income per share and net
book value of the Common Stock. In addition, the ability of the
Board of Directors to issue shares of Preferred Stock and to set
the voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or
restrictions, thereof without further shareholder action might
serve as an anti-takeover measure and, as such, help to
perpetuate the incumbent management of the company or thwart a
takeover attempt, notwithstanding the desire of shareholders to
change management or accept a takeover offer. As of the date of
this Prospectus, the Board of Directors has not authorized the
issuance of any shares of Preferred Stock, and the Company has no
agreements, arrangements or understandings with respect to the
issuance of any shares of Preferred Stock.
The specific terms of any Preferred Stock being offered (the
"Offered Preferred Stock") will be described in the Prospectus
Supplement relating to such Offered Preferred Stock. The
following summaries of certain provisions of the Preferred Stock
are subject to, and are qualified in their entirety by reference
to, the Articles of Incorporation and the Certificate of
Designation relating to the particular class or series of
Preferred Stock. Reference is made to the Prospectus Supplement
relating to the Offered Preferred Stock offered thereby for
specific terms, including:
(1) The designation 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(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such
Preferred Stock.
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable.
(5) The procedures for any auction and remarketing, if any, of
such Preferred Stock.
(6) The provisions for a sinking fund, if any, for such
Preferred Stock.
(7) The provisions for redemption, if applicable, of such
Preferred Stock.
(8) Any listing of such Preferred Stock on any securities
exchange.
(9) The terms and conditions, if applicable, upon which such
Preferred Stock will be convertible into or exchangeable for
Common Stock, and whether at the option of the holder
thereof or the Company.
(10) Whether such Preferred Stock will rank senior or junior to
or on a parity with any other class or series of Preferred
Stock.
(11) The voting rights, if any, of such Preferred Stock.
(12) Any other specific terms, preferences, rights, limitations
or restrictions of such Preferred Stock.
(13) A discussion of Federal income tax considerations applicable
to such Preferred Stock.
CERTAIN PROVISIONS OF THE ARTICLES OF INCORPORATION AND BYLAWS
Pursuant to the Company's Articles of Incorporation, the
Company's Board of Directors is divided into three classes as
nearly equal in number as the total number of directors permits.
Directors are elected to each class at successive annual meetings
to serve three-year terms. Any newly created or eliminated
directorships resulting from an increase or decrease in the
number of authorized directors are divided equally among the
three classes so as to maintain such classes as nearly equal in
number as possible, provided that in no case shall a decrease in
the number of directors for a class shorten the term of an
incumbent director.
Under the Articles of Incorporation, the Board of Directors
has the right to make, alter, amend, change, add to or repeal the
Company's Bylaws and the right (which, to the extent exercised,
is exclusive) to establish the rights, powers, duties, rules and
procedures that from time to time shall govern the Board of
Directors and each of its members, including without limitation,
the vote required for any action by the Board of Directors, and
that from time to time shall affect the directors' powers to
manage the business and affairs of the Company. No Bylaw may be
adopted by the shareholders that would impair or impede the
implementation of the foregoing.
The affirmative vote of not less than two-thirds (2/3) of
the votes entitled to be cast by the holders of all then
outstanding shares of voting stock of the Company, voting
together as a single class, is required to make, alter, amend,
change, add to or repeal any provision of the Articles of
Incorporation or Bylaws that would be inconsistent with the
foregoing governance provisions, unless a majority of the Board
of Directors has recommended such a change.
The above-referenced provisions with regard to the Company's
Board of Directors may have certain anti-takeover effects by
preventing or delaying a change in the membership of the
Company's Board of Directors. Such provisions are intended to
encourage persons who may seek to acquire control of the Company
to initiate such an acquisition through negotiations with the
Company's Board of Directors. However, the effect of such
provision may be to discourage a third party from making a
partial tender offer or otherwise attempting to obtain control
of, the Company. To the extent any potential acquirors are
deterred by the Company's Board of Directors, such provisions may
have the effect of preserving incumbent management in office.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is
SunTrust Bank, Atlanta, Georgia.
DESCRIPTION OF DEPOSITARY SHARES
The Company may issue receipts ("Depositary Receipts") for
Depositary Shares, each of which will represent a fractional
interest of a share of a particular series of Preferred Stock, as
specified in the applicable Prospectus Supplement. Shares of
Preferred Stock of each series represented by Depositary Shares
will be deposited under a separate Deposit Agreement (each, a
"Deposit Agreement") among the Company, the depositary named
therein (the "Preferred Stock Depositary") and the holders from
time to time of the Depositary Receipts.
GENERAL
Subject to the terms of the Depositary Agreement, each owner
of a Depositary Receipt will be entitled, in proportion to the
fractional interest of a share of a particular series of
Preferred Stock represented by the Depositary Shares evidenced by
such Depositary Receipt, to all the rights and preferences of the
Preferred stock represented by such Depositary Shares (including
dividend, voting, conversion, redemption and liquidation
rights).The Depositary Shares will be evidenced by Depositary
Receipts issued pursuant to the applicable Deposit Agreement.
Immediately following the issuance and delivery of the Preferred
Stock by the Company to the Preferred Stock Depositary, the
Company will cause the Preferred Stock Depositary to issue, on
behalf of the Company, the Depositary Receipts. Copies of the
applicable form of Deposit Agreement and Depositary Receipt may
be obtained from the Company upon request, and the statements
made hereunder relating to the Deposit Agreement and the
Depositary Receipts to be issued thereunder are summaries of
certain provisions thereof and do not purport to be complete and
are subject to, and qualified in their entirety by reference to,
all of the provisions of the applicable Deposit Agreement and
related Depositary Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash
dividends or other cash distributions received in respect of the
Preferred Stock to the record holders of Depositary Receipts
evidencing the related Depositary Shares in proportion to the
number of such Depositary Receipts owned by such holders, subject
to certain obligations of holders to file proofs, certificates
and other information and to pay certain charges and expenses to
the Preferred Stock Depositary.
In the event of a distribution other than in cash, the
Preferred Stock Depositary will distribute property received by
it to the record holders of Depositary Receipts entitled thereto,
subject to certain obligations of holders to file proofs,
certificates and other information and to pay certain charges and
expenses to the Preferred Stock Depositary, unless the Preferred
Stock Depositary determines that it is not feasible to make such
distribution, in which case the Preferred Stock Depositary may,
with the approval of the Company, sell such property and
distribute the net proceeds from such sale to such holders.
No distribution will be made in respect of any Depositary
Share to the extent that it represents any Preferred Stock
converted into other securities.
26
WITHDRAWAL OF STOCK
Upon surrender of the Depositary Receipts at the corporate
trust office of the Preferred Stock Depositary (unless the
related Depositary Shares have previously been called for
redemption or converted into other securities), the holders
thereof will be entitled to delivery at such office, to or upon
such holder's order, of the number of whole or fractional shares
of the Preferred Stock and any money or other property
represented by the Depositary Shares evidenced by such Depositary
Receipts. Holders of Depositary Receipts will be entitled to
receive whole or fractional shares of the related Preferred Stock
on the basis of the proportion of Preferred Stock represented by
such Depositary Share as specified in the applicable Prospectus
Supplement, but holders of such shares of Preferred Stock will
not thereafter be entitled to receive Depositary Shares therefor.
If the Depositary Receipts delivered by the holder evidence a
number of Depositary Shares in excess of the number of Depositary
Shares representing the number of shares of Preferred Stock to be
withdrawn, the Preferred Stock Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such
excess number of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems shares of Preferred Stock held
by the Preferred Stock Depositary, the Preferred Stock Depositary
will redeem as of the same redemption date the number of
Depositary Shares representing shares of the Preferred Stock so
redeemed, provided the Company shall have paid in full to the
Preferred Stock Depositary the redemption price of the Preferred
Stock to be redeemed plus an amount equal to any accrued and
unpaid dividends thereon to the date fixed for redemption. The
redemption price per Depositary Share will be equal to the
corresponding proportion of the redemption price and any other
amounts per share payable with respect to the Preferred Stock.
If fewer than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected pro rata (as
nearly as may be practicable without creating fractional
Depositary Shares) or by any other equitable method determined by
the Company.
From and after the date fixed for redemption, all dividends
in respect of the shares of Preferred Stock so called for
redemption will cease to accrue, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all
rights of the holders of the Depositary Receipts evidencing the
Depositary Shares so called for redemption will cease, except the
right to receive any moneys payable upon such redemption and any
money or other property to which the holders of such Depositary
Receipts were entitled upon such redemption and surrender thereof
to the Preferred Stock Depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders
of the Preferred Stock are entitled to vote, the Preferred Stock
Depositary will mail the information contained in such notice of
meeting to the record holders of the Depositary Receipts
evidencing the Depositary Shares which represent such Preferred
Stock. Each record holder of Depositary Receipts evidencing
Depositary Shares on the record date (which will be the same date
as the record date for the Preferred Stock) will be entitled to
instruct the Preferred Stock Depositary as to the exercise of the
voting rights pertaining to the amount of Preferred Stock
represented by such holder's Depositary Shares. The Preferred
Stock Depositary will vote the amount of Preferred Stock
represented by such Depositary Shares in accordance with such
instructions, and the Company will agree to take all reasonable
action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to
do so. The Preferred Stock Depositary will abstain from voting
the amount of Preferred Stock represented by such Depositary
Shares to the extent it does not receive specific instructions
from the holders of Depositary Receipts evidencing such
Depositary Shares. The Preferred Stock Depositary shall not be
responsible for any failure to carry out any instruction to vote,
or for the manner or effect of any such vote made, as long as
such action or non-action is in good faith and does not result
from negligence or willful misconduct of the Preferred Stock
Depositary.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up
of the Company, whether voluntary or involuntary, the holders of
each Depositary Receipt will be entitled to the fraction of the
liquidation preference accorded each share of Preferred Stock
represented by the Depositary Shares evidenced by such Depositary
Receipt, as set forth in the applicable Prospectus Supplement.
CONVERSION OF PREFERRED STOCK
The Depositary Shares, as such, are not convertible into
Common Stock or any other securities or property of the Company.
Nevertheless, if so specified in the applicable Prospectus
Supplement relating to an offering of Depositary Shares, the
Depositary Receipts may be surrendered by holders thereof to the
Preferred Stock Depositary with written instructions to the
Preferred Stock Depositary to instruct the Company to cause
conversion of the Preferred Stock represented by the Depositary
Shares evidenced by such Depositary Receipts into whole shares of
Common Stock, other shares of Preferred Stock of the Company or
other shares of stock, and the Company has agreed that upon
receipt of such instructions and any amounts payable in respect
thereof, it will cause the conversion thereof utilizing the same
procedures as those provided for delivery of Preferred Stock to
effect such conversion. If the Depositary Shares evidenced by a
Depositary Receipt are to be converted in part only, a new
Depositary Receipt or Receipts will be issued for any Depositary
Shares not to be converted. No fractional shares of Common Stock
will be issued upon conversion, and if such conversion would
result in a fractional share being issued, an amount will be paid
in cash by the Company equal to the value of the fractional
interest based upon the closing price of the Common Stock on the
last business day prior to the conversion.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary
Shares which represent the Preferred Stock and any provision of
the Deposit Agreement may at any time be amended by agreement
between the Company and the Preferred Stock Depositary. However,
any amendment that materially and adversely alters the rights of
the holders of Depositary Receipts or that would be materially
and adversely inconsistent with the rights granted to the holders
of the related Preferred Stock will not be effective unless such
amendment has been approved by the existing holders of at least
sixty-six and two-third percent (66K%) of the Depositary Shares
evidenced by the Depositary Receipts then outstanding. No
amendment shall impair the right, subject to certain exceptions
in the Depositary Agreement, of any holder of Depositary Receipts
to surrender any Depositary Receipt with instructions to deliver
to the holder the related Preferred Stock and all money and other
property, if any, represented thereby, except in order to comply
with law. Every holder of an outstanding Depositary Receipt at
the time any such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended
thereby.
The Deposit Agreement may be terminated by the Company upon
not less than 30 days' prior written notice to the Preferred
Stock Depositary if the holders of a majority of each series of
Preferred Stock affected by such termination consents to such
termination, whereupon the Preferred Stock Depositary shall
deliver or make available to each holder of Depositary Receipts,
upon surrender of the Depositary Receipts held by such holder,
such number of whole or fractional shares of Preferred Stock as
are represented by the Depositary Shares evidenced by such
Depositary Receipts together with any other property held by the
Preferred Stock Depositary with respect to such Depositary
Receipts. In addition, the Deposit Agreement will automatically
terminate if (i) all outstanding Depositary Shares shall have
been redeemed, (ii) there shall have been a final distribution in
respect of the related Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the holders of
Depositary Receipts evidencing the Depositary Shares representing
such Preferred Stock or (iii) each share of the related Preferred
Stock shall have been converted into securities of the Company
not so represented by Depositary Shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
Deposit Agreement. In addition, the Company will pay the fees
and expenses of the Preferred Stock Depositary in connection with
the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay the fees and
expenses of the Preferred Stock Depositary for any duties
requested by such holders to be performed which are outside of
those expressly provided for in the Deposit Agreement.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITARY
The Preferred Stock Depositary may resign at any time by
delivering to the Company notice of its election to do so, and
the Company may at any time remove the Preferred Stock
Depositary, any such resignation or removal to take effect upon
the appointment of a successor Preferred Stock Depositary. A
successor Preferred Stock Depositary must be appointed within 60
days after delivery of the notice of resignation or removal and
must be a bank or trust company having its principal office in
the United States and having a combined capital and surplus of at
least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depositary will forward to holders of
Depositary Receipts any reports and communications from the
Company which are received by the Preferred Stock Depositary with
respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will
be liable if it is prevented from or delayed in, performing its
obligations under the Deposit Agreement, by law or any
circumstances beyond its control. The obligations of the Company
and the Preferred Stock Depositary under the Deposit Agreement
will be limited to performing their duties thereunder in good
faith and without negligence (in the case of any action or
inaction in the voting of Preferred Stock represented by the
Depositary Shares), gross negligence or willful misconduct, and
the Company and the Preferred Stock Depositary will not be
obligated to prosecute or defend any legal proceeding in respect
of any Depositary Receipts, Depositary Shares or shares of
Preferred Stock represented thereby unless satisfactory indemnity
is furnished. The Company and the Preferred Stock Depositary may
rely on written advice of counsel or accountants, or information
provided by persons presenting shares of Preferred Stock
represented thereby for deposit, holders of Depositary Receipts
or other persons believed in good faith to be competent to give
such information, and on documents believed in good faith to be
genuine and signed by a proper party.
In the event the Preferred Stock Depositary shall receive
conflicting claims, requests or instructions from any holders of
Depositary Receipts, on the one hand, and the Company, on the
other hand, the Preferred Stock Depositary shall be entitled to
act on such claims, requests or instructions received from the
Company.
DESCRIPTION OF WARRANTS
The Company may issue warrants to purchase Debt Securities
(the "Debt Warrants"), Preferred Stock (the "Preferred Stock
Warrants"), Depositary Shares (the "Depositary Shares Warrants")
or Common Stock (the "Common Stock Warrants," collectively with
the Debt Warrants, the Preferred Stock Warrants and the
Depositary Shares Warrants (the "Warrants"). Warrants may be
issued independently or together with any Offered Securities (as
defined under "Plan of Distribution") and may be attached to or
separate from such Offered Securities. The Warrants are to be
issued under warrant agreements (each a "Warrant Agreement") to
be entered into between the Company and a bank or trust company,
as warrant agent (the "Warrant Agent"), all as shall be set forth
in the Prospectus Supplement relating to the Warrants being
offered pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms
of Debt Warrants offered thereby, the Warrant Agreement relating
to such Debt Warrants and the Debt Warrant certificates
representing such Debt Warrants, including the following: (i) the
title of such Debt Warrants; (ii) the aggregate number of such
Debt Warrants; (iii) the price or prices at which such Debt
Warrants will be issued; (iv) the designation, aggregate
principal amount and terms of the Debt Securities purchasable
upon exercise of such Debt Warrants, the exercise price and the
procedures, terms, limitations and conditions relating to the
exercise of such Debt Warrants; (v) the designation and terms of
any related Debt Securities with which such Debt Warrants are
issued, and the number of such Debt Warrants issued with each
such Debt Security; (vi) the date, if any, on and after which
such Debt Warrants and the related Debt Securities will be
separately transferable; (vii) the date on which the right to
exercise such Debt Warrants shall commence, and the date on which
such right shall expire; (viii) the maximum or minimum number of
such Debt Warrants which may be exercised at any time; (ix) a
discussion of the material United States Federal income tax
considerations applicable to such Debt Warrants; and (x) any
other terms of such Debt Warrants.
Debt Warrant certificates will be exchangeable for new Debt
Warrant certificates of different denominations, and Debt
Warrants may be exercised at the corporate trust office of the
Warrant Agent or any other office indicated in the applicable
Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the
rights of holders of the Debt Securities purchasable upon such
exercise and will not be entitled to payments of principal of (or
premium, if any) or interest, if any, on the Debt Securities
purchasable upon such exercise.
OTHER WARRANTS
The applicable Prospectus Supplement will describe the
following terms of Preferred Stock Warrants, Depositary Shares
Warrants and Common Stock Warrants in respect of which this
Prospectus is being delivered: (i) the title of such Warrants;
(ii) the Securities for which such Warrants are exercisable;
(iii) the price or prices at which such Warrants will be issued;
(iv) the number of such Warrants issued with each share of
Preferred Stock, Common Stock or Depositary Share; (v) any
provisions for adjustment of the number or amount of shares of
Preferred Stock, Common Stock or Depositary Shares receivable
upon exercise of such Warrants or the exercise price of such
Warrants; (vi) if applicable, the date on and after which such
Warrants and the related Preferred Stock, Common Stock or
Depositary Shares will be separately transferable; (vii) if
applicable, a discussion of the material United States Federal
income tax considerations applicable to such Warrants; (viii) any
other terms of such Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such
Warrants; (ix) the date on which the right to exercise such
Warrants shall commence, and the date on which such right shall
expire; (x) the maximum or minimum number of such Warrants which
may be exercised at any time; and (xi) any other terms of such
Warrants.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder of Warrants to purchase
for cash such principal amount of Debt Securities or shares of
Preferred Stock, Common Stock or Depositary Shares at such
exercise price as shall in each case be set forth in, or be
determinable as set forth in, the Prospectus Supplement relating
to the Warrants offered thereby. Warrants may be exercised at
any time up to the close of business on the expiration date set
forth in the Prospectus Supplement relating to the Warrants
offered thereby. After the close of business on the expiration
date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus
Supplement relating to the Warrants offered thereby. Upon
receipt of payment and the Warrant certificate properly completed
and duly executed at the corporate trust office of the Warrant
Agent or any other office indicated in the Prospectus Supplement,
the Company will, as soon as practicable, forward the Debt
Securities, Depositary Shares or shares of Preferred Stock or
Common Stock purchasable upon such exercise. If less than all of
the Warrants represented by such Warrant certificate are
exercised, a new Warrant certificate will be issued for the
remaining Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities in and/or outside the
United States: (i) through underwriters or dealers, (ii) directly
to a limited number of purchasers or to a single purchaser or
(iii) through agents. The Prospectus Supplement with respect to
the Securities being offered (the "Offered Securities" ) will set
forth the terms of the offering of the Offered Securities,
including the name or names of any underwriters or agents, the
purchase price of the Offered Securities and net proceeds to the
Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If underwriters are used in the sale, the Offered Securities
will be acquired by the underwriters for their own accounts and
may be resold from time to time in one or more transactions, at a
fixed public offering price or at varying prices determined at
the time of sale. The Securities may be offered to the public
either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more underwriters.
The underwriter or underwriters with respect to a particular
underwritten offering of Securities, or, if any underwriting
syndicate is used, the managing underwriter or underwriters, will
be set forth on the cover of the applicable Prospectus
Supplement. Unless otherwise set forth in the Prospectus
Supplement relating thereto, the obligations of the underwriters
to purchase the Offered Securities will be subject to conditions
precedent and the underwriters will be obligated to purchase all
of the Offered Securities if any are purchased.
If dealers are utilized in the sale of Offered Securities in
respect of which this Prospectus is delivered, and if so
specified in the applicable Prospectus Supplement, the Company
will sell such Offered Securities to the dealers as principals.
The dealers may then resell such Offered Securities to the public
at varying prices to be determined by such dealers at the time of
resale. The names of the dealers and the terms of the transaction
will be set forth in the applicable Prospectus Supplement.
The 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 Offered Securities in
respect to which this Prospectus is delivered will be named, and
any commissions payable by the Company to such agent will be set
forth, in the Prospectus Supplement.
Underwriters, dealers and agents 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 with
respect to payments which the underwriters, dealers or agents may
be required to make in respect thereof. Underwriters, dealers
and agents may be customers of, may engage in transactions with,
or perform services for, the Company in the ordinary course of
business.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed
upon for the Company by Kilpatrick Stockton LLP, Atlanta,
Georgia, counsel to the Company and for any underwriters or
agents by Simpson Thacher & Bartlett, New York, New York.
EXPERTS
The consolidated financial statements and schedule of the
Company appearing in the Company's Annual Report on Form 10-K for
the year ended December 31, 1996 have been audited by Arthur
Andersen LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference.
Such consolidated financial statements and schedule are, and
audited financial statements to be included in subsequently filed
documents will be, incorporated herein by reference in reliance
upon the reports of such auditors pertaining to such financial
statements (to the extent covered by consents filed with the
Commission) given upon the authority of such firm as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses in connection
with the issuance and distribution of the securities being
registered, other than underwriting discounts and commissions.
All of the amounts shown are estimated, except the SEC
registration fee.
SEC registration fee . . . . . . . . . . . . $118,000
Legal fees and expenses . . . . . . . . . . . 25,000
Printing and engraving . . . . . . . . . . . 30,000
Fees of accountants . . . . . . . . . . . . . 10,000
Fees of trustee . . . . . . . . . . . . . 30,000
Blue sky fees and expenses . . . . . . . . . 5,000
Rating agency fees . . . . . . . . . . . . . 125,000
Miscellaneous . . . . . . . . . . . . . 20,000
-------
Total . . . . . . . . . . . . . . . . . . $363,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Georgia Business Corporation Code permits, and the
Company's Bylaws require, the Company to indemnify any person who
was or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (which could
include actions, suits or proceedings under the Securities Act,
whether civil, criminal, administrative, or investigative (other
than an action brought by or on behalf of the Company) by reason
of the fact that such person is or was a director or officer of
the Company or is or was serving at the request of the Company as
a director or officer of another corporation, partnership, joint
venture, trust, or other enterprise, against all expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person
acted in a manner he reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. With regard to actions or suits by or
in the right of the Company, indemnification is limited to
reasonable expenses incurred in connection with the proceeding
and generally is not available in connection with such a
proceeding in which such person was adjudged liable to the
Company.
In addition, the Company carries insurance on behalf of
directors and officers that may cover liabilities under the
Securities Act.
II-1
ITEM 16. EXHIBITS.
A list of exhibits included as part of this Registration
Statement is set forth in the Exhibit Index appearing elsewhere
herein and is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) 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) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 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:
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference 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) 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 section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by
reference in 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 the time shall be
deemed to be the initial bona fide offering thereof.
(c) 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
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 Act and will be governed by the final adjudication of such
issue.
(d) 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 shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the Securities offered
therein, and the offering of such Securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, 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 Atlanta, State of
Georgia, on March 6, 1998.
EQUIFAX INC.
By: /s/ C.B. ROGERS, JR.
C.B. Rogers, Jr.
Chairman of the Board
Each person whose signature appears below hereby constitutes
and appoints C.B. Rogers, Jr., and David A. Post and either of
them, as 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 name, place and stead, and in any and all
capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement on Form S-3
and to cause the same to be filed, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission, hereby granting to said attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing whatsoever requisite and
necessary to be done in connection therewith, as fully to all
intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all acts and things that said
attorneys-in-fact and agents, or either of them or their
substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this registration statement has been signed below by
the following persons in the capacities and on the dates
indicated.
Signature Title Date
--------- ----- -----
/s/ C.B. ROGERS, JR. Chairman of the Board March 6, 1998
C. B. Rogers, Jr.
/s/ THOMAS F. CHAPMAN President, Chief March 6, 1998
Thomas F. Chapman Executive Officer and
Director (principal
executive officer)
/s/ DAVID A. POST Corporate Vice President March 6, 1998
David A. Post and Chief Financial
Officer (principal
financial officer)
/s/ PHILIP J. MAZZILLI Corporate Vice President, March 6, 1998
Philip J. Mazzilli Treasurer and Controller
(principal accounting
officer)
/s/ D. W. MCLAUGHLIN Director March 6, 1998
D. W. McLaughlin
/s/ LEE A. AULT, III Director March 6, 1998
Lee A. Ault, III
/s/ JOHN L. CLENDENIN Director March 6, 1998
John L. Clendenin
_______________________ Director March 6, 198
A. W. Dahlberg
/s/ ROBERT P. FORRESTAL Director March 6, 1998
Robert P. Forrestal
/s/ L. PHILLIP HUMANN Director March 6, 1998
L. Phillip Humann
/s/ LARRY L. PRINCE Director March 6, 1998
Larry L. Prince
/s/ D. RAYMOND RIDDLE Director March 6, 1998
D. Raymond Riddle
___________________________ Director March 6, 1998
Betty L. Siegel, Ph.D.
/s/ LOUIS W. SULLIVAN, M.D. Director March 6, 1998
Louis W. Sullivan, M.D.
EXHIBIT INDEX
Exhibit
Number
- -------
1.1 Form of Underwriting Agreement.
4.1 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit "B" to the Company's
definitive Proxy Statement for the 1996 Annual Meeting of
Shareholders, filed March 27, 1996 (File No. 1-6605)).
4.2 Bylaws of the Company (incorporated by reference to Commission File
No. 1-6605, Exhibit 3.2 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1996).
4.3 Loan Agreement (Incorporated herein by reference to Exhibit 4.1 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as amended by Form 10-K/A filed April 4, 1996
(File No. 1-6605)).
4.4 Portion of Prospectus and Trust Indenture (Incorporated herein by
reference to the Company's Registration Statement on Form S-3 filed
on June 17, 1993 (Reg. No. 33-62820)).
4.5 Rights Agreement (Incorporated herein by reference to Exhibit 99 to
the Company's Form 8-A filed on November 2, 1995 (File No.
1-6605)).
4.6 Form of Indenture to be entered into between the Company and The First
National Bank of Chicago, as trustee, relating to the Debt Securities.
*4.7 Form of Fixed Rate Note.
*4.8 Form of Floating Rate Note.
*4.9 Form of Debt Securities Warrant Agreement.
*4.10 Form of Preferred Stock Warrant Agreement.
*4.11 Form of Common Stock Warrant Agreement.
*4.12 Form of Deposit Agreement.
5. Opinion of Kilpatrick Stockton LLP
12 Statement of Calculation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.3 Consent of Kilpatrick Stockton LLP (included in Exhibit 5).
24 Power of Attorney (included in the signature page of this
Registration Statement).
25.1 Statement of Eligibility of The First National Bank of Chicago under the
Trust Indenture Act of 1939 on Form T-1 relating to the Indenture.
_________________________
* To be filed by amendment or incorporated by reference in connection with
the offering of the Securities.