-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, IPWD82G3VKO8T0lA2ZIs/HtgqV/HZopt0YbAfgFXPM6Vv+1112G74On6I/xbEoW4 rpDxcedvyLURs5W3BkfGSw== 0000950147-95-000092.txt : 19950626 0000950147-95-000092.hdr.sgml : 19950626 ACCESSION NUMBER: 0000950147-95-000092 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19950623 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MAGMA COPPER CO CENTRAL INDEX KEY: 0000061425 STANDARD INDUSTRIAL CLASSIFICATION: PRIMARY SMELTING & REFINING OF NONFERROUS METALS [3330] IRS NUMBER: 860219794 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-60501 FILM NUMBER: 95548686 BUSINESS ADDRESS: STREET 1: 7400 N ORACLE RD STE 200 CITY: TUCSON STATE: AZ ZIP: 85704 BUSINESS PHONE: 6025755600 MAIL ADDRESS: STREET 1: 7400 N ORACLE ROAD STREET 2: SUITE 200 CITY: TUCSON STATE: AZ ZIP: 85704 S-3 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on June 22, 1995 Registration No. 33- ============================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 __________________ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ______________ MAGMA COPPER COMPANY (Exact name of registrant as specified in its charter) Delaware 86-0219794 (State or other jurisdiction of (I.R.S. employer incorporation or organization) I.D. number) 7400 North Oracle Road Suite 200 Tucson, Arizona 85704 (520) 575-5600 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) Douglas J. Purdom Chief Financial Officer Magma Copper Company 7400 North Oracle Road Suite 200 Tucson, Arizona 85704 (520) 575-5600 (Name, address, including zip code, and telephone number, including area code, of agent for service) _________________________ The Commission is requested to send copies of all communications to: Steven D. Pidgeon Alison S. Ressler Snell & Wilmer L.L.P. Sullivan & Cromwell One Arizona Center 444 South Flower Street Phoenix, Arizona 85004-0001 Los Angeles, CA 90071 (602) 382-6252 (213) 955-8022 Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. ______________________ If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] _____________________ If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. [X] _____________________ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [X] CALCULATION OF REGISTRATION FEE =========================================================================== Proposed Title of each class of maximum securities to be aggregate Amount of registered offering registration price fee - --------------------------------------------------------------------------- Preferred Stock (par value $.01 per share) . . . . (1)(2) N/A Depositary Shares . . . . (1)(3) N/A Preferred Stock Warrants (1)(4) N/A Common Stock (par value $.01 per share) . . . . (1)(5) N/A Common Stock Warrants . . (1)(4) N/A Debt Securities . . . . . (1)(6) N/A Debt Warrants . . . . . . (1)(4) N/A Total . . . . . . . $200,000,000 $68,966(7) ============================================================================ (1) In no event will the aggregate initial offering price of all securities issued from time to time pursuant to this Registration Statement exceed $200,000,000 or the equivalent thereof in one or more foreign currencies or composite currencies, including the European Currency Unit. If any such Debt Securities are issued at an original issue discount, then the offering price shall be in such greater principal amount as shall result in an aggregate initial offering price of up to $200,000,000. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. (2) Subject to Footnote (1), there are being registered hereunder an indeterminate number of shares of Preferred Stock as may be sold, from time to time, by the Registrant. There are also being registered hereunder an indeterminate number of shares of Preferred Stock and Depositary Shares (including common stock purchase rights and preferred stock purchase rights, if any, appurtenant to either of the foregoing) as shall be issuable upon conversion of Debt Securities registered hereby. (3) Subject to Footnote (1), there are being registered hereunder an indeterminate number of Depositary Shares to be evidenced by Depositary Receipts issued pursuant to a Deposit Agreement. In the event the Registrant elects to offer to the public fractional interests in shares of the Preferred Stock registered hereunder, Depositary Receipts will be distributed to those persons purchasing such fractional interests, and the shares of Preferred Stock will be issued to the Depositary under the Deposit Agreement. (4) Subject to Footnote (1), there are being registered hereunder an indeterminate number of Preferred Stock Warrants, Common Stock Warrants and Debt Warrants representing rights to purchase Preferred Stock, Common Stock and Debt Securities, respectively, registered pursuant to this Registration Statement. (5) Subject to Footnote (1), there are being registered hereunder an indeterminate number of shares of Common Stock as may be sold, from time to time, by the Registrant (including common stock purchase rights and preferred stock purchase rights, if any, appurtenant thereto). There are also being registered hereunder an indeterminate number of shares of Common Stock (including common stock purchase rights and preferred stock purchase rights, if any, appurtenant thereto) as shall be issuable upon conversion of the Preferred Stock or Debt Securities registered hereby. (6) Subject to Footnote (1), there are being registered hereunder an indeterminate principal amount of Debt Securities as may be sold from time to time, by the Registrant. (7) Calculated pursuant to Rule 457(o) of the rules and regulations under the Securities Act of 1933, as amended (the "Securities Act"). Pursuant to Rule 429 under the Securities Act of 1933, this Registration Statement contains a combined prospectus relating to the $200,000,000 principal amount of securities registered hereby and $300,000,000 principal amount of securities registered on April 21, 1994 pursuant to Registration No. 33-53021, of which $100,000,000 remains available for issuance thereunder. A filing fee of $103,448.28 was paid in connection with Registration Statement No. 33-53021 of which $34,482.76 was attributable to the $100,000,000 in securities that remain subject to such Registration Statement. 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 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 JUNE 22, 1995 MAGMA COPPER COMPANY Debt Securities Preferred Stock Common Stock Warrants _______________ Magma Copper Company ("Magma" or the "Company") may offer from time to time (i) Debt Securities ("Debt Securities"), consisting of debentures, notes and/or other unsecured evidences of indebtedness in one or more series, which may be senior ("Senior Debt Securities"), senior subordinated ("Senior Subordinated Debt Securities") or subordinated ("Subordinated Debt Securities"), (ii) shares of Preferred Stock, $.01 par value per share ("Preferred Stock") in one or more series, (iii) shares of Common Stock, $.01 par value per share ("Common Stock"), or (iv) Warrants ("Warrants") to purchase Debt Securities, Preferred Stock or Common Stock (Debt Securities, Preferred Stock, Common Stock and Warrants are collectively referred to as the "Securities"), at an aggregate initial offering price not to exceed U.S. $300,000,000, at prices and on terms to be determined at the time of sale. The accompanying Prospectus Supplement sets forth with regard to the particular Securities in respect of which this Prospectus is being delivered (i) in the case of Debt Securities, the title, aggregate principal amount, denominations (which may be in United States dollars, or in any other currency, currencies or currency unit, including the European Currency Unit), maturity, rate of interest, if any (which may be fixed or variable), or method of calculation thereof, time of payment of any interest, any terms for redemption at the option of the Company or the holder, any terms for sinking fund payments, subordination terms, if any, any conversion or exchange rights, any listing on a securities exchange, the initial public offering price and any other terms in connection with the offering and sale of such Debt Securities, (ii) in the case of Preferred Stock, the designation, number of shares, stated value and liquidation preference per share, 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, any conversion or exchange rights, whether the Company has elected to offer the Preferred Stock in the form of depositary shares, any listing of the Preferred Stock on a securities exchange and any other terms in connection with the offering and sale of such Preferred Stock, (iii) in the case of Common Stock, the number of shares of Common Stock, the initial public offering price and the terms of the offering thereof, and (iv) in the case of Warrants, the number and terms thereof, the designation and the number of Securities issuable upon their exercise, the exercise price, any listing of the Warrants or the underlying Securities on a securities exchange, the initial public offering price and any other terms in connection with the offering, sale and exercise of the Warrants. The Prospectus Supplement will also contain information, as applicable, about certain United States Federal income tax considerations relating to the Securities in respect of which this Prospectus is being delivered. The Company's Common Stock is listed on the New York Stock Exchange (Symbol: "MCU"). Any Common Stock offered will be listed, subject to notice of issuance, on such exchange. The Company may sell Securities to or through underwriters acting as principals for their own account or as agents, and also may sell Securities directly to other purchasers or through agents designated from time to time. The accompanying Prospectus Supplement sets forth the names of any underwriters or agents involved in the sale of the Securities in respect of which this Prospectus is being delivered, the amounts of Securities, if any, to be purchased by underwriters and the compensation, if any, of such underwriters or agents. See "Plan of Distribution" herein. 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 date of this Prospectus is , 1995. AVAILABLE INFORMATION Magma 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 reports, proxy statements and other information filed by Magma with the Commission can be inspected and copied at the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following regional offices of the Commission: 7 World Trade Center, 13th Floor, New York, New York 10007 and Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such information can be obtained from the Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Magma's Common Stock, par value $.01 per share, 5-5/8% Cumulative Convertible Preferred Stock, Series D, par value $.01 per share, 6% Cumulative Convertible Preferred Stock, Series E, par value $.01 per share, and Common Stock purchase warrants, $8.50 exercise price, are listed on the New York Stock Exchange ("NYSE") and similar information can be inspected and copied at the NYSE, 20 Broad Street, 17th Floor, New York, New York 10005. This Prospectus constitutes a part of two registration statements on Form S-3 (the "Registration Statements") filed by the Company with the Commission under the Securities Act of 1933, as amended (the "Securities Act"). As permitted by the rules and regulations of the Commission, this Prospectus omits certain of the information contained in the Registration Statements and reference is hereby made to the Registration Statements and related exhibits for further information with respect to the Company and the Securities offered hereby. Statements contained herein concerning the provisions of any documents filed as an exhibit to the Registration Statements or otherwise filed with the Commission are not necessarily complete, and in each instance reference is made to the copy of such document so filed. Each such statement is qualified in its entirety by such reference. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents have been filed by Magma with the Commission and are hereby incorporated by reference into this Prospectus: (i) Annual Report on Form 10-K for the fiscal year ended December 31, 1994, (ii) Quarterly Report on Form 10-Q for the period ended March 31, 1995, (iii) Notice and Proxy Statement dated April 7, 1995 for Annual Meeting of Stockholders, (iv) Current Report on Form 8-K dated May 24, 1995, and (v) the description of the Common Stock contained in the Company's Form 8-A filed on October 22, 1992. All other documents and reports filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act from the date of this Prospectus and prior to the termination of the offering of the Securities shall be deemed to be incorporated by reference herein and shall be deemed to be a part hereof from the date of the filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person to whom a copy of this Prospectus is delivered, on written or oral request of such person, a copy of any or all documents which are incorporated herein by reference (not including the exhibits to such documents, unless such exhibits are specifically incorporated by reference in the document which this Prospectus incorporates). Requests should be directed to Mr. Richard Johnson, Assistant Treasurer, at the Company's principal executive offices located at 7400 North Oracle Road, Suite 200, Tucson, Arizona 85704, telephone number (520) 575-5600. THE COMPANY Magma is a fully integrated producer of electrolytic copper and ranks among the largest U.S. copper producers. Magma's principal products are high quality copper cathode and high quality copper rod, the latter of which is the basic feedstock of the copper wire and cable industry. The Company owns and operates underground copper mines at its San Manuel and Superior Mining Divisions, an open-pit copper mine at its Pinto Valley Mining Division, and in situ leaching operations at its San Manuel and Pinto Valley Mining Divisions, all of which are located in southeastern Arizona. Recently, the Company began development of its Robinson mine located near Ely, Nevada. Production at this mine is expected to commence in the first quarter of 1996. In the fourth quarter of 1994, the Company completed the acquisition of a company which owns one of the largest operating mines in Southern Peru ("Tintaya"). Tintaya operates an open-pit mine and is engaged in a variety of development projects at this property. The Company operates the largest and most modern copper smelting and refining complex in the United States. The Company's smelter, which was expanded in 1994, has a rated production capacity of 720 million pounds of copper anode per year, representing approximately 25% of U.S. copper smelting capacity. In addition to smelting and refining its own copper concentrate production, the Company smelts and refines a substantial amount of copper concentrates on a custom basis for, or purchased from, third parties, the profits from which effectively reduce the Company's overall break-even cost of producing copper from its mines. INVESTMENT CONSIDERATIONS Copper Price Volatility. The profitability of the Company's operations is largely dependent upon the worldwide market price for copper. A one cent per pound change in the average price received for the Company's 1994 output would have affected earnings before interest, taxes, depreciation and amortization by an estimated $6.0 million. Copper prices have historically been subject to wide fluctuations and are affected by numerous factors beyond the control of the Company, including international economic and political conditions, levels of supply and demand, the availability and cost of copper substitutes, inventory levels maintained by copper producers and others and, to a lesser degree, inventory carrying costs (primarily interest charges) and international exchange rates. From time to time the Company engages in hedging activities in an effort to stabilize the Company's cash flow in the event of declining copper prices. Depending upon the hedging program employed, market conditions and other factors, hedging activities could reduce the cash flow which the Company would otherwise realize. Competition. Certain foreign and domestic copper producers benefit from higher-grade orebodies than those owned by the Company. Further, most foreign producers benefit from lower labor rates and less stringent environmental regulation than United States producers. Many foreign producers maintain maximum production to meet government-imposed employment and foreign exchange revenue goals, sometimes without regard to the condition of the world copper market or the profitability of their mining operations. The Company and other copper producers also compete with manufacturers of other materials, including aluminum, stainless steel, plastics and fiber optic cables. Should copper prices increase, use of these alternative materials may also increase. Environmental Regulation. The mining and mineral processing industries are subject to extensive regulations for the protection of the environment, including regulations relating to air and water quality, mine reclamation, remediation, solid and hazardous waste handling and disposal and the promotion of occupational safety. From time to time the Company is cited for noncompliance with applicable environmental laws and regulations. However, the Company believes that it is currently in material compliance with these laws and regulations and, although there can be no assurance in this regard, also believes that there is no pending environmental matter that is likely to have a material adverse effect on its results of operations. Future regulations or regulatory interpretations could require the Company to modify or curtail its operations or incur substantial additional expense. In this regard, the Company cannot predict, at this time, the level of new emissions controls and related costs which may be required for it to comply with standards governing emissions of sulphur, particulates and air toxics that are expected to be adopted under the federal Clean Air Act Amendments of 1990 and the Arizona Clean Air Act. Industry Risks; Reserves. The Company is subject to the normal risks encountered in the mining industry, such as unusual or unexpected geological formations, cave-ins, flooding, fires, environmental issues and water issues. The Company's mineral reserves may not conform to geological, geomechanical, metallurgical or other expectations with the result that the volume and grade of reserves recovered and rates of production may be less than anticipated. Further, market price fluctuations in copper, changes in operating and capital costs and other factors may affect ore reserves. Development Projects. The Company is pursuing or evaluating several development opportunities in an effort to enhance its ore reserves. Development of these projects will require several hundred million dollars in capital investment. To the extent undertaken, the Company intends to finance its development projects with internal cash flow, cash reserves and additional financings as necessary. The success of these projects is subject to a number of factors, some of which are outside of the Company's control. The cost estimates for these projects are subject to change. If the Company is unable to replace its reserves from the mine development projects being pursued or evaluated, or with other reserves identified or acquired in the future, the Company's dependence upon third-party sources to supply copper concentrate to its smelting and refining operations would increase. Investments in Foreign Mining Properties. The Company is engaged in an ongoing program of reviewing exploratory and operating properties for acquisition or development. Many of these properties are located outside of the United States. There are certain risks inherent in the acquisition and operation of foreign properties, including the risks of political instability, the possibility of adverse economic or tax reforms, restrictions on the repatriation of funds, and currency risks. In the fourth quarter of 1994, the Company acquired Magma Tintaya S. A. (formerly known as Empressa Minera Especial Tintaya S.A.), which owns one of the largest operating copper mining projects in Southern Peru. As part of its investment in Tintaya, the Company and the government of Peru entered into a judicial stability agreement and the Company became a party to an existing tax stability agreement between the government and Tintaya. These agreements provide for, among other things, free exchange of foreign currency, remittance abroad of profits and capital, the right to use or sell any product derived from Tintaya, and tax and legal stability. Although these agreements do not eliminate all risk associated with its investment in Tintaya, the Company believes that such agreements minimize a number of the risks typically associated with an investment in a foreign property. USE OF PROCEEDS The Company anticipates that the net proceeds of the sales of the Securities will be used for general corporate purposes or such other uses as may be set forth in a Prospectus Supplement. RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS For purposes of the following ratios: (i) "earnings" consist of income before taxes, accounting changes and extraordinary items plus fixed charges adjusted for capitalized interest and amortization of previously capitalized interest; (ii) "fixed charges" consist of interest (including capitalized interest) and the estimated interest portion of lease rental expenses, amortization of debt expenses and write-offs of loan costs; and (iii) "preferred stock dividend requirements" include dividends paid in zero coupon notes and shares of Common Stock. In calculating the ratio of earnings to combined fixed charges and preferred stock dividend requirements, the preferred stock dividend requirements were assumed to be equal to the pretax earnings required to cover such dividend requirements. The amount of such pretax earnings required to cover preferred stock dividends was computed using tax rates for the applicable year. Preferred stock dividends are included in total "fixed charges" and deducted from "earnings." Three Months ended Year Ended December 31, March 31, ----------------------- ------------ 1990 1991 1992 1993 1994 1994 1995 ---- ---- ---- ---- ---- ---- ---- Ratio of earnings to fixed charges 2.9x -- 2.7x 1.5x 3.1x 1.5x 6.4x Ratio of earnings to combined fixed charges and preferred stock 2.5x -- 2.0x 1.4x 2.3x 1.1x 4.8x dividend requirements Before giving effect to the non-cash accounting adjustments taken in 1991 in connection with the Company's reorganization into distinct profit centers and the related adoption of FASB No. 109 "Accounting for Income Taxes" and FASB No. 106 "Employers' Accounting for Postretirement Benefits Other Than Pensions," the ratio of earnings to fixed charges for the year ended December 31, 1991 was 1.8x and the ratio of earnings to combined fixed charges and preferred stock dividend requirements for that year was 1.5x. After giving effect to such accounting adjustments, earnings were inadequate to cover fixed charges by $167.5 million for the year ended December 31, 1991 and were inadequate to cover combined fixed charges and preferred stock dividend requirements by $179.8 million for that year. DESCRIPTION OF DEBT SECURITIES The Debt Securities may be issued from time to time in one or more series and will constitute either Senior Debt Securities, Senior Subordinated Debt Securities or Subordinated Debt Securities. The particular terms of each series of Debt Securities offered hereunder, including the nature of any variations from the following general provisions applicable to such Debt Securities, will be described in a Prospectus Supplement relating to such Debt Securities. Senior Debt Securities, Senior Subordinated Debt Securities and Subordinated Debt Securities will each be issued under a separate Indenture (herein referred to as the "Senior Indenture", "Senior Subordinated Indenture" and "Subordinated Indenture", respectively; and individually an "Indenture" and collectively the "Indentures") entered into by the Company prior to the issuance of such Debt Securities. The forms of Senior Indenture and Subordinated Indenture and the Senior Subordinated Indenture, dated as of May 15, 1995, between the Company and State Street Bank and Trust Company, as Trustee, have been filed as exhibits to or have been incorporated by reference into the Registration Statement to which this Prospectus relates. To the extent not included herein, information regarding the trustee under an Indenture (individually a "Trustee" and collectively the "Trustees") will be included in the applicable Prospectus Supplement relating to the Debt Securities described therein. The following discussion includes a summary description of the material terms of the Indentures, other than terms which are specific to a particular series of Debt Securities and which will be described in the Prospectus Supplement relating to such series. The following summaries do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the Indentures, including the definitions therein of certain terms capitalized in this Prospectus. Wherever particular Sections, Articles or defined terms of the Indentures are referred to herein or in a Prospectus Supplement, such Sections, Articles or defined terms are incorporated herein or therein by reference. General The Debt Securities will be general unsecured obligations of the Company. The Indentures do not limit the aggregate amount of Debt Securities which may be issued thereunder, and Debt Securities may be issued thereunder from time to time in separate series up to the aggregate amount from time to time authorized by the Company for each series. The applicable Prospectus Supplement or Prospectus Supplements will describe the following terms of the series of Debt Securities in respect of which this Prospectus is being delivered: (1) the title of such Debt Securities, and whether such Debt Securities are Senior Debt Securities, Senior Subordinated Debt Securities or Subordinated Debt Securities; (2) any limit on the aggregate principal amount of such Debt Securities; (3) whether any of such Debt Securities are to be issuable in permanent global form ("Global Security") and, if so, the terms and conditions, if any, upon which interests in such Securities in global form may be exchanged, in whole or in part, for the individual Debt Securities represented thereby; (4) the person to whom any interest on any Debt Security of the series shall be payable if other than the person in whose name the Debt Security is registered on the Regular Record Date; (5) the date or dates on which such Debt Securities will mature; (6) the rate or rates (which may be fixed or variable) of interest, if any, or the method of calculation thereof, which such Debt Securities will bear; (7) the date or dates from which any such interest will accrue, the Interest Payment Dates on which any such interest on such Debt Securities will be payable and the Regular Record Date for any interest payable on any Interest Payment Date; (8) the place or places where the principal of, premium, if any, and interest on such Debt Securities will be payable; (9) the period or periods within which, the events upon the occurrence of which, and the price or prices at which, such Debt Securities may, pursuant to any optional or mandatory provisions, be redeemed or purchased, in whole or in part, by the Company and any terms and conditions relevant thereto; (10) the obligations of the Company, if any, to redeem or repurchase such Debt Securities at the option of the holders; (11) the denominations in which any such Debt Securities will be issuable, if other than denominations of $1,000 and any integral multiple thereof; (12) the currency, currencies or currency unit or units of payment of principal of and any premium and interest on such Debt Securities if other than U.S. dollars; (13) any index or formula used to determine the amount of payments of principal of and any premium and interest on such Debt Securities; (14) if the principal of, or premium, if any, or interest on such Debt Securities is to be payable, at the election of the Company or a holder thereof, in one or more currencies or currency units other than that or those in which such Debt Securities are stated to be payable, the currency, currencies or currency units in which payment of the principal of and any premium and interest on Debt Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which such election is to be made; (15) if other than the principal amount thereof, the portion of the principal amount of such Debt Securities of the series which will be payable upon acceleration of the Maturity thereof; (16) whether the subordination provisions summarized below, or different subordination provisions, shall apply to Debt Securities that are Senior Subordinated Debt Securities or Subordinated Debt Securities and, if so, the aggregate principal amount of Senior Indebtedness then outstanding; (17) the applicability of any provisions described under "Covenants with Respect to Senior Debt Securities" or "Covenants with Respect to Senior Subordinated Debt Securities"; (18) the applicability of any provisions described under "Defeasance"; (19) the terms and conditions, if any, pursuant to which the Debt Securities are convertible or exchangeable into Common Stock or other Securities; and (20) any other terms of such Debt Securities not inconsistent with the provisions of the respective Indentures. Debt Securities may be issued at a discount from their principal amount. United States Federal income tax considerations and other special considerations applicable to any such Original Issue Discount Securities will be described in the applicable Prospectus Supplement. If the purchase price of any of the Debt Securities is denominated in a foreign currency or currencies or a foreign currency unit or units or if the principal of and any premium and interest on any series of Debt Securities is payable in a foreign currency or currencies or a foreign currency unit or units, the restrictions, elections, general tax considerations, specific terms and other information with respect to such issue of Debt Securities will be set forth in the applicable Prospectus Supplement. The Indentures do not limit the amount of additional unsecured indebtedness that the Company or its subsidiaries may incur. Further, certain of the operations of the Company are and may in the future be conducted through subsidiaries. To the extent so conducted, the ability of the Company to meet its debt obligations, including obligations in respect of the Debt Securities, would be dependent upon the earnings and cash flow of its subsidiaries, and the claims of the holders of the Debt Securities will be effectively subordinated to the claims of creditors of the Company's subsidiaries. Unless otherwise specified in the resolutions or any supplemental indenture establishing the terms of the offered Debt Securities, the terms of the offered Debt Securities or the covenants contained in the Indenture do not afford holders protection in the event of a highly leveraged or other similar transaction involving the Company that may adversely affect securityholders. Subordination of Senior Subordinated Debt Securities and Subordinated Debt Securities The term "Senior Indebtedness", when used with respect to any series of Senior Subordinated Debt Securities, means indebtedness of the Company and indebtedness guaranteed by the Company for principal of and premium and interest on (a) money borrowed from banks or other lending institutions whether outstanding on the date of the initial issuance of any Senior Subordinated Debt Securities or thereafter incurred and (b) any other indebtedness or obligation of the Company, whether outstanding on the date of the initial issuance of any Senior Subordinated Debt Securities or thereafter created, incurred, assumed or guaranteed, which is evidenced by a note or other similar instrument, including Senior Debt Securities, unless by the terms of such note or other instrument it is provided that such indebtedness is not superior in right of payment to the Senior Subordinated Debt Securities; provided, however, that Senior Indebtedness shall not include (w) any other series of Senior Subordinated Debt Securities, (x) any trade payables or notes or other instruments evidencing the same, (y) notes or other obligations issued in lieu of cash dividends on, or in exchange for, Capital Stock, or (z) any liability for federal, state, local or other taxes owed or owing by the Company. At June 12, 1995, the Company had outstanding three series of Senior Subordinated Debt Securities, with an aggregate principal amount outstanding of $525,000,000. The term "Senior Indebtedness", when used with respect to any series of Subordinated Debt Securities, means indebtedness of the Company and indebtedness guaranteed by the Company for principal of and premium and interest on (a) money borrowed from banks or other lending institutions whether outstanding on the date of the initial issuance of any Subordinated Debt Securities or thereafter incurred and (b) any other indebtedness or obligation of the Company, whether outstanding on the date of the initial issuance of any Subordinated Debt Securities or thereafter created, incurred, assumed or guaranteed, which is evidenced by a note or other similar instrument, including Senior Debt Securities and Senior Subordinated Debt Securities, unless by the terms of such note or other instrument it is provided that such indebtedness is not superior in right of payment to the Subordinated Debt Securities; provided, however, that Senior Indebtedness shall not include (w) any other series of Subordinated Debt Securities, (x) any trade payables or notes or other instruments evidencing the same, (y) notes or other obligations issued in lieu of cash dividends on, or in exchange for, Capital Stock, or (z) any liability for federal, state, local or other taxes owed or owing by the Company. In either case, the term "Senior Indebtedness" includes, without limitation, (i) any and all interest accruing on any of the Senior Indebtedness after the commencement of any bankruptcy, insolvency, reorganization or other similar proceeding, notwithstanding any provision or rule of law which might restrict the rights of any holder thereof as to such interest, and (ii) any and all claims for principal of, premium and interest on, and fees and expenses in respect of, Senior Indebtedness described in clause (a) above, notwithstanding any disallowance, avoidance or subordination of such claim under any insolvency, fraudulent conveyance or equitable subordination law. Payment of the principal amount of and premium, if any, and interest on the Senior Subordinated Debt Securities and Subordinated Debt Securities, respectively, will be subordinated in right of payment to the prior payment in full of all Senior Indebtedness with respect thereto on the terms and conditions of the respective Indentures governing such Senior Subordinated Debt Securities and Subordinated Debt Securities, respectively. The Company is prohibited from making any payment of principal of or premium or interest on Senior Subordinated Debt Securities or Subordinated Debt Securities, as the case may be, and any payment in respect of any redemption, retirement, purchase or other acquisition of Senior Subordinated Debt Securities or Subordinated Debt Securities, as the case may be, (i) unless, as of the earlier to occur of the date such payment is made and the date that provision is made for such payment in accordance with the terms of the applicable Indenture, all amounts then due and payable for principal of and premium, if any, and interest on Senior Indebtedness with respect to the Senior Subordinated Debt Securities or Subordinated Debt Securities, as the case may be, have been paid in full, or (ii) if at the earlier to occur of the date of such payment or provision therefor, there has occurred any event of default under the terms of such Senior Indebtedness entitling the holder of such Senior Indebtedness to accelerate the maturity thereof as a result of such event of default. Notwithstanding such prohibition, the Company may make such payments, if (a) the Company or the Trustee has received a notice of a default or an event of default under any agreement covering such Senior Indebtedness (other than notice of a default or event of default relating to payments of principal or interest, either at maturity, upon redemption, by declaration or otherwise), which default or event of default would permit the holders of such Senior Indebtedness to accelerate its maturity (whether or not such acceleration has occurred), and (b) 179 days have passed after the earliest date on which such notice was given with respect to such default or event of default (a "Payment Blockage Period") so long as the applicable Indenture otherwise permits payment at that time; provided, however, that only one Payment Blockage Period may be commenced within one 360-day period with respect to the Senior Subordinated Debt Securities or Subordinated Debt Securities, as the case may be. No event of default which existed or was continuing on the date of the commencement of any Payment Blockage Period with respect to the Senior Indebtedness shall be, or be made, the basis for the commencement of a second Payment Blockage Period by the representative for the holders of such Senior Indebtedness unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days. (Article Fifteen of Senior Subordinated Indenture and Subordinated Indenture) Upon any payment or distribution of assets or securities of the Company of any kind or character upon any dissolution, winding up or total liquidation or reorganization of the Company (in bankruptcy or otherwise), the holders of Senior Indebtedness with respect to the Senior Subordinated Debt Securities or Subordinated Debt Securities, as the case may be, will first be entitled to receive payment in full of principal of and premium, if any, and interest on such Senior Indebtedness before the holders of Senior Subordinated Debt Securities or Subordinated Debt Securities, as the case may be, are entitled to receive any payment of the principal of or premium or interest on such Senior Subordinated Debt Securities or Subordinated Debt Securities, as the case may be. (Article Fifteen of Senior Subordinated Indenture and Subordinated Indenture) By reason of such provisions, in the event of insolvency, holders of Senior Subordinated Debt Securities and Subordinated Debt Securities may recover less, ratably, than holders of Senior Indebtedness with respect thereto. The Senior Debt Securities, when issued, will rank on a parity with all other unsecured and unsubordinated indebtedness of the Company. Conversion or Exchange of Debt Securities If so indicated in the applicable Prospectus Supplement with respect to a particular series of Debt Securities, such series will be convertible or exchangeable into Common Stock or other securities on the terms and conditions set forth therein. Form, Exchange, Registration, Conversion, Transfer and Payment Unless otherwise indicated in the applicable Prospectus Supplement, the Debt Securities will be issued only in fully registered form in denominations of $1,000 or integral multiples thereof. (Section 302) Unless otherwise indicated in the applicable Prospectus Supplement, payment of principal of, premium, if any, and interest on the Debt Securities will be payable, and the exchange, conversion and transfer of Debt Securities will be registerable, at the office or agency of the Company maintained for such purposes and at any other office or agency maintained for such purpose. (Sections 301, 305 and 1002) No service charge will be made for any registration of transfer or exchange of the Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge imposed in connection therewith. (Section 305) All monies paid by the Company to a paying agent for the payment of principal of and any premium or interest on any Debt Security which remain unclaimed for two years after such principal, premium or interest has become due and payable may be repaid to the Company and thereafter the holder of such Debt Security may look only to the Company for payment thereof. (Section 1003) Global Securities The Debt Securities of a series may be issued in whole or in part in the form of one or more Global Securities that will be deposited with, or on behalf of, a Depositary ("Global Depositary") or its nominee identified in the applicable Prospectus Supplement. In such a case, one or more Global Securities will be issued in a denomination or aggregate denomination equal to the portion of the aggregate principal amount of outstanding Debt Securities of the series to be represented by such Global Security or Securities. Unless and until it is exchanged in whole or in part for Debt Securities in registered form, a Global Security may not be registered for transfer or exchange except as a whole by the Global Depositary for such Global Security to a nominee of such Global Depositary or by a nominee of such Global Depositary to such Global Depositary or another nominee of such Global Depositary or by such Global Depositary or any nominee to a successor Global Depositary or a nominee of such successor Global Depositary and except in the circumstances described in the applicable Prospectus Supplement. (Sections 204 and 305) The specific terms of the depositary arrangement with respect to any portion of a series of Debt Securities to be represented by a Global Security will be described in the applicable Prospectus Supplement. The Company expects that the following provisions will apply to depositary arrangements. Unless otherwise specified in the applicable Prospectus Supplement, Debt Securities which are to be represented by a Global Security to be deposited with or on behalf of a Global Depositary will be represented by a Global Security registered in the name of such Global Depositary or its nominee. Upon the issuance of such Global Security, and the deposit of such Global Security with or on behalf of the Global Depositary for such Global Security, the Global Depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of the Debt Securities represented by such Global Security to the accounts of institutions that have accounts with such Global Depositary or its nominee ("participants"). The accounts to be credited will be designated by the underwriters or agents of such Debt Securities or by the Company, if such Debt Securities are offered and sold directly by the Company. Ownership of beneficial interest in such Global Security will be limited to participants or Persons that may hold interests through participants. Ownership of beneficial interests by participants in such Global Security will be shown on, and the transfer of that ownership interest will be effected only through, records maintained by the Global Depositary or its nominee for such Global Security. Ownership of beneficial interests in such Global Security by Persons that hold through participants will be shown on, and the transfer of that ownership interest within such participant will be effected only through, records maintained by such participant. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in certificated form. The foregoing limitations and such laws may impair the ability to transfer beneficial interests in such Global Securities. So long as the Global Depositary for a Global Security, or its nominee, is the registered owner of such Global Security, such Global Depositary or such nominee, as the case may be, will be considered the sole owner or holder of the Securities represented by such Global Security for all purposes under the applicable Indenture. Unless otherwise specified in the applicable Prospectus Supplement, owners of beneficial interests in such Global Security will not be entitled to have Debt Securities of the series represented by such Global Security registered in their names, will not receive or be entitled to receive physical delivery of Debt Securities of such series in certificated form and will not be considered the holders thereof for any purposes under the applicable Indenture. (Sections 204 and 305) Accordingly, each Person owning a beneficial interest in such Global Security must rely on the procedures of the Global Depositary and, if such Person is not a participant, on the procedures of the participant through which such Person owns its interest, to exercise any rights of a holder under the applicable Indenture. The Company understands that under existing industry practices, if the Company requests any action of holders or an owner of a beneficial interest in such Global Security desires to give any notice or take any action a holder is entitled to give or take under an Indenture, the Global Depositary would authorize the participants to give such notice or take such action, and participants would authorize beneficial owners owning through such participants to give such notice or take such action or would otherwise act upon the instructions of beneficial owners owning through them. Principal of and any premium and interest on a Global Security will be payable in the manner described in the applicable Prospectus Supplement. Covenants with Respect to Senior Debt Securities If so indicated in the applicable Prospectus Supplement with respect to a particular series of Senior Debt Securities, holders of such Senior Debt Securities will be entitled to the benefit of one or both of the following covenants. Restrictions on Secured Debt Neither the Company nor any Subsidiary shall incur, issue, assume or guarantee any notes, bonds, debentures or other evidences of indebtedness for money borrowed (collectively, "Debt") secured after the date of the Senior Indenture by a mortgage, pledge or lien ("Mortgage") on any Principal Property of the Company or a Significant Subsidiary or on any shares of stock or Debt of any Significant Subsidiary, unless the Company secures, or causes such Significant Subsidiary to secure, the Senior Debt Securities equally and ratably with (or, at the Company's option, prior to) such secured Debt, together, at the determination of the Company, with certain other Debt of the Company; provided, however, that such restriction shall not apply to the incurrence of any secured Debt if, after giving effect thereto, the aggregate outstanding principal amount of all such Debt so secured after the date of the Senior Indenture, together with all Attributable Debt of the Company and its Significant Subsidiaries in respect of sale and leaseback transactions after the date of the Senior Indenture and existing at such time involving Principal Properties owned by the Company or a Significant Subsidiary (with the exception of such transactions which are excluded as described in "Restrictions on Sales and Leasebacks" below), would not exceed 10% of the Consolidated Assets of the Company and its Subsidiaries. This restriction will not apply to, and there shall be excluded in computing secured Debt for the purpose of such restriction, Debt secured prior to the date of the Senior Indenture and Debt secured by (a) Mortgages on property of, or on any shares of stock of or Debt of, any corporation existing at the time such corporation becomes a Significant Subsidiary; (b) Mortgages in favor of the Company or a Significant Subsidiary; (c) Mortgages in favor of governmental bodies to secure progress, advance or other statutory or contract payments; Mortgages for taxes, assessments or other governmental charges or levies; or materialmen's mechanics', carriers', workmen's, repairmen's, landlord's and other like Mortgages; (d) Mortgages on property, equipment, mines or facilities, or shares of stock or Debt, to secure the payment of all or any part of the purchase price thereof or the construction, improvement or development cost thereof, or any Debt incurred in connection therewith, existing prior to, at the time of, or within 180 days after, the acquisition (including any acquisition through merger or consolidation) or construction, improvement or development thereof, provided that any such Mortgage shall only extend to the property, equipment, mines or facilities, or shares of stock or Debt, acquired or constructed, improved or developed, or to property or mines, including undeveloped mineralized deposits or orebodies or segments thereof, on which the acquired or constructed, improved or developed property, equipment, mines or facilities is situated; (e) Mortgages securing certain tax-exempt obligations issued by governmental bodies, including industrial revenue or pollution control bonds; (f) Mortgages created in connection with a project financed, or assets acquired, with, and created to secure, a Nonrecourse Obligation; (g) production payments or other rights of others to the output of mines, refineries, smelters, concentrators or production facilities, including project financings with respect to any property or assets acquired, constructed or improved by the Company or a Subsidiary with the proceeds of such project financings; or Mortgages to secure the payment of workmen's compensation or the performance of tenders, bids or similar contracts (including surety or appeal bonds) and Mortgages entered into in the ordinary course of business for similar purposes; or (h) subject to certain limitations, any extension, renewal or refunding of any Mortgage referred to in the foregoing clauses (a) through (g) inclusive. (Section 1006 of Senior Indenture) The Senior Indenture does not restrict the Company or any Subsidiary from incurring unsecured Debt. Restrictions on Sales and Leasebacks Neither the Company nor any Significant Subsidiary may enter into any sale and leaseback transaction involving any Principal Property, unless after giving effect thereto the aggregate amount of all Attributable Debt with respect to all such transactions occurring after the date of the Senior Indenture and existing at such time plus all outstanding secured Debt incurred by the Company and its Significant Subsidiaries after the date of the Senior Indenture (with the exception of secured Debt which is excluded as described in "Restrictions on Secured Debt" above) would not exceed 10% of Consolidated Assets of the Company and its Subsidiaries. This restriction does not apply to, and there shall be excluded from Attributable Debt in any computation under such restriction, any sale and leaseback transaction if (a) the lease is for a period, including renewal rights, not in excess of three years; (b) the sale or transfer of the Principal Property is made prior to, at the time of, or within 180 days after its acquisition or completion of construction; (c) the lease secures or relates to certain tax-exempt obligations issued by governmental bodies, including industrial revenue or pollution control bonds; (d) the transaction is between the Company and a Significant Subsidiary or between Significant Subsidiaries; (e) the lease payment obligation is created in connection with a project financed, or assets acquired, with, and such obligation constitutes, a Nonrecourse Obligation; or (f) the Company or such Significant Subsidiary, within 180 days after the sale is completed, applies to the retirement of Funded Debt of the Company or a Significant Subsidiary, or to the purchase of other property which will constitute Principal Property, an amount not less than the greater of (i) the net proceeds of the sale of the Principal Property leased or (ii) the fair market value of the Principal Property leased, as determined by certain officers of the Company. The amount to be applied to the retirement of Funded Debt shall be reduced by (x) the principal amount of any Funded Debt (including the Debt Securities) of the Company or a Significant Subsidiary retired and cancelled within 180 days after such sale with proceeds other than the proceeds from such sale and (y) the principal amount of Funded Debt, other than any Funded Debt referred to in the preceding clause (x), voluntarily retired by the Company or any Significant Subsidiary within 180 days after such sale using proceeds other than the proceeds of such sale. (Section 1007 of Senior Indenture) Covenants with Respect to Senior Subordinated Debt Securities If so indicated in the applicable Prospectus Supplement with respect to a particular series of Senior Subordinated Debt Securities, holders of such Senior Subordinated Debt Securities will be entitled to the benefit of one or both of the following covenants. Limitation on Subordinated Liens Neither the Company nor any Subsidiary shall incur, issue, assume or guarantee any Debt which is pari passu or (by the express terms thereof) subordinate in right of payment to the Senior Subordinated Debt Securities, secured after the date of the Senior Subordinated Indenture by a Mortgage on any Principal Property of the Company or a Significant Subsidiary or on any shares of stock or Debt of any Significant Subsidiary, unless the Company secures, or causes such Significant Subsidiary to secure, the Senior Subordinated Debt Securities (i) equally and ratably with (or, at the Company's option, prior to) such secured Debt or (ii) in the event such secured Debt is subordinated in right to payment to the Senior Subordinated Securities, prior to such secured Debt, together, at the determination of the Company, with certain other Debt of the Company; provided, however, that such restriction shall not apply to the incurrence of any secured Debt if, after giving effect thereto, the aggregate amount of all such Debt so secured after the date of the Senior Subordinated Indenture and then outstanding would not exceed 10% of the Consolidated Assets of the Company and its Subsidiaries. This restriction will not apply to, and there shall be excluded in computing secured Debt for the purpose of such restriction, Debt secured prior to the date of the Senior Subordinated Indenture and Debt secured by (a) Mortgages on property of, or on any shares of stock of or Debt of, any corporation existing at the time such corporation becomes a Significant Subsidiary; (b) Mortgages in favor of the Company or a Significant Subsidiary; (c) Mortgages in favor of governmental bodies to secure progress, advance or other statutory or contract payments; Mortgages for taxes, assessments or other governmental changes or levies; or materialmen's mechanics', carriers', workmen's, repairmen's, landlord's and other like Mortgages; (d) Mortgages on property, equipment, mines or facilities, or shares of stock or Debt, to secure the payment of all or any part of the purchase price thereof or the construction, improvement or development cost thereof, or any Debt incurred in connection therewith, existing prior to, at the time of, or within 180 days after, the acquisition (including any acquisition through merger or consolidation) or construction, improvement or development thereof, provided that any such Mortgage shall only extend to the property, equipment, mines or facilities, or shares of stock or Debt, acquired or constructed, improved or developed, or to property or mines, including undeveloped mineralized deposits or orebodies or segments thereof, on which the acquired or constructed, improved or developed property, equipment, mines or facilities is situated; (e) Mortgages securing certain tax-exempt obligations issued by governmental bodies, including industrial revenue or pollution control bonds; (f) Mortgages created in connection with a project financed, or assets acquired, with, and created to secure, a Nonrecourse Obligation; (g) production payments or other rights of others to the output of mines, refineries, smelters, concentrators or production facilities, including project financings, with respect to any property or assets acquired, constructed or improved by the Company or a Subsidiary with the proceeds of such project financings; or Mortgages to secure the payment of workmen's compensation or the performance of tenders, bids or similar contracts (including surety or appeal bonds) and Mortgages entered into in the ordinary course of business for similar purposes; or (h) subject to certain limitations, any extension, renewal or refunding of any Mortgage referred to in the foregoing clauses (a) through (g) inclusive. (Section 1006 of Senior Subordinated Indenture) The Senior Subordinated Indenture does not restrict the Company or any Subsidiary from incurring unsecured Debt. Limitation on Certain Debt The Company shall not incur any Debt which by its terms is both (i) subordinated in right of payment to any Senior Debt and (ii) senior in right of payment to the Senior Subordinated Debt Securities. Events of Default The following are Events of Default under the Indentures with respect to Debt Securities of any series: (a) failure to pay principal of or premium, if any, on any Debt Security of that series when due; (b) failure to pay any interest on any Debt Security of that series when due, continued for 30 days; (c) failure to make any sinking fund payment, when due, in respect of any Debt Security of that series; (d) failure to perform in any material respect any other covenant of the Company in the applicable Indenture (other than a covenant included in such Indenture solely for the benefit of a series of Debt Securities other than that series), continued for 60 days after written notice as provided in the respective Indentures; (e) acceleration of any indebtedness for money borrowed by the Company in excess of $20 million, if such acceleration is not annulled as provided in the respective Indentures; (f) certain events of bankruptcy, insolvency or reorganization; and (g) any other Event of Default provided with respect to Debt Securities of that series. (Section 501) If an Event of Default with respect to outstanding Debt Securities of any series shall occur and be continuing, either the Trustee or the holders of at least 25% in principal amount of the outstanding Debt Securities of that series by notice as provided in the respective Indentures may declare the principal amount (or, if the Debt Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all Debt Securities of that series to be due and payable immediately. However, at any time after a declaration of acceleration with respect to Debt Securities of any series has been made, but before a judgment or decree based on such acceleration has been obtained, the holders of a majority in principal amount of the outstanding Debt Securities of that series may, under certain circumstances, rescind and annul such acceleration. (Section 502) For information as to waiver of defaults, see "Modification and Waiver" below. The Indentures provide that, subject to the duty of the respective Trustees thereunder during an Event of Default to act with the required standard of care, such Trustee will be under no obligation to exercise any of its rights or powers under the respective Indentures at the request or direction of any of the holders, unless such holders shall have offered to such Trustee reasonable security or indemnity. (Sections 601 and 603) Subject to certain provisions, including those requiring security or indemnification of the Trustees, the holders of a majority in principal amount of the outstanding Debt Securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable Trustee, or exercising any trust or power conferred on such Trustee, with respect to the Debt Securities of that series. (Section 512) No holder of a Debt Security of any series will have any right to institute any proceeding with respect to the applicable Indenture or for any remedy thereunder, unless such holder shall have previously given to the applicable Trustee written notice of a continuing Event of Default (as defined) and unless also the holders of at least 25% in aggregate principal amount of the outstanding Debt Securities of the same series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the holders of a majority in aggregate principal amount of the outstanding Debt Securities of the same series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days. (Section 507) However, such limitations do not apply to a suit instituted by a holder of a Debt Security for enforcement of payment of the principal of and interest on such Debt Security on or after the respective due dates expressed in such Debt Security. (Section 508) The Company will be required to furnish to the Trustees annually a statement as to the performance by the Company of its obligations under the respective Indentures and as to any default in such performance. (Section 1004) Modification and Waiver Without the consent of any holder of outstanding Debt Securities, the Company and the Trustee may amend or supplement the Indentures or the Debt Securities to cure any ambiguity, defect or inconsistency, or to make any change that does not materially adversely affect the rights of any holder of Debt Securities. (Section 901) Other modifications and amendments of the respective Indentures may be made by the Company and the Trustee with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding Debt Securities of each series affected thereby; provided, however, that no such modification or amendment may, without the consent of the holder of each outstanding Debt Security affected thereby: (a) change the Stated Maturity of the principal of, or any installment of principal of, or interest on, any Debt Security; (b) reduce the principal amount of, the rate of interest on, or the premium, if any, payable upon the redemption of, any Debt Security; (c) reduce the amount of principal of an Original Issue Discount Security payable upon acceleration of the Maturity thereof; (d) change the place or currency of payment of principal of, or premium, if any, or interest on any Debt Security; (e) impair the right to institute suit for the enforcement of any payment on or with respect to any Debt Security on or after the Stated Maturity or Redemption Date thereof; (f) modify the conversion provisions applicable to Convertible Debt Securities in a manner adverse to the holders thereof; (g) modify the subordination provisions applicable to Senior Subordinated Debt Securities or Subordinated Debt Securities in a manner adverse to the holders thereof; or (h) reduce the percentage in principal amount of outstanding Debt Securities of any series, the consent of the holders of which is required for modification or amendment of the applicable Indenture or for waiver of compliance with certain provisions of the applicable Indenture or for waiver of certain defaults. (Section 902) The holders of at least a majority in aggregate principal amount of the outstanding Debt Securities of any series may on behalf of the holders of all Debt Securities of that series waive, insofar as that series is concerned, compliance by the Company with certain covenants of the applicable Indenture. (Section 1009) 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 Debt Securities of that series, waive any past default under the applicable Indenture with respect to that series, except a default in the payment of the principal of, or premium, if any, or interest on, any Debt Security of that series or in respect of a provision which under the applicable Indenture cannot be modified or amended without the consent of the holder of each outstanding Debt Security of that series affected. (Section 513) Consolidation, Merger and Sale of Assets The Company may not consolidate or merge with or into, or transfer or lease all or substantially all of its assets to, any Person, and any other Person may not consolidate or merge with or into, the Company, unless (i) the Person formed by such consolidation or into which the Company is merged or which acquires or leases all or substantially all of the assets of the Company expressly assumes all of the Company's obligations on the Debt Securities and under the Indenture, (ii) immediately after giving effect to such transaction no Event of Default shall have happened and be continuing, and (iii) certain other conditions are met. (Article Eight) Defeasance If so indicated in the applicable Prospectus Supplement with respect to the Debt Securities of a series, the Company, at its option (i) will be discharged from any and all obligations in respect of the Debt Securities of such series (except for certain obligations to register the transfer or exchange of Debt Securities of such series, to replace destroyed, stolen, lost or mutilated Debt Securities of such series, and to maintain an office or agency in respect of the Debt Securities and hold moneys for payment in trust) or (ii) will be released from its obligations to comply with the covenants that are specified under "Covenants with Respect to Senior Debt Securities" or "Covenants with Respect to Senior Subordinated Debt Securities" above (and any covenants that may apply to Subordinated Debt Securities) with respect to the Debt Securities of such series, and the occurrence of an event described in clause (d) under "Events of Default" above with respect to any defeased covenant, and clauses (e) and (g) under "Events of Default" above shall no longer be Events of Default, if in either case the Company irrevocably deposits with the Trustee, in trust, money or U.S. Government Obligations that through the payment of interest thereon and principal thereof in accordance with their terms will provide money in an amount sufficient to pay all the principal of and premium, if any, and any interest on the Debt Securities of such series on the dates such payments are due (which may include one or more redemption dates designated by the Company) in accordance with the terms of such Debt Securities. Such a trust may only be established if, among other things, (a) no Event of Default or event which with the giving of notice or lapse of time, or both, would become an Event of Default under the applicable Indenture shall have occurred and be continuing on the date of such deposit, (b) no Event of Default described under clause (f) under "Events of Default" above or event which with the giving of notice or lapse of time, or both, would become an Event of Default described under such clause (f) shall have occurred and be continuing at any time during the period ending on the 91st day following such date of deposit, and (c) the Company shall have delivered an Opinion of Counsel to the effect that the holders of the Debt Securities will not recognize gain or loss for United States Federal income tax purposes as a result of such deposit or defeasance and will be subject to United States Federal income tax in the same manner as if such defeasance had not occurred. In the event the Company fails to comply with its remaining obligations under the applicable Indenture after a defeasance of such Indenture with respect to the Debt Securities of any series as described under clause (ii) above and the Debt Securities of such series are declared due and payable because of the occurrence of any undefeased Event of Default, the amount of money and U.S. Government Obligations on deposit with the Trustee may be insufficient to pay amounts due on the Debt Securities of such series at the time of the acceleration resulting from such Event of Default. However, the Company will remain liable in respect to such payments. (Article Thirteen) Notwithstanding the description set forth under "Subordination of Senior Subordinated Debt Securities and Subordinated Debt Securities" above, in the event that the Company deposits money or U.S. Government Obligations in compliance with the Indenture that governs the Senior Subordinated Debt Securities or Subordinated Debt Securities, as the case may be, in order to defease all or certain of its obligations with respect to the applicable series of Debt Securities, the moneys or U.S. Government Obligations so deposited will not be subject to the subordination provisions of the applicable Indenture and the indebtedness evidenced by such series of Debt Securities will not be subordinated in right of payment to the holders of applicable Senior Indebtedness to the extent of the moneys or U.S. Government Obligations so deposited. Provision of Financial Information The Company will provide to the Trustee a copy of all financial reports it files with the Commission. If, during any reporting period, the Company is not required to file such reports with the Commission, the Company will provide the Trustee substantially similar financial reports concerning the Company as if the Company were so required. Governing Law The Indentures and the Debt Securities will be governed by, and construed in accordance with, the laws of the State of New York. (Section 112) Regarding the Trustee Chemical Trust Company of California, an affiliate of Chemical Bank, N.A., will serve as Trustee under the Indenture governing the Senior Debt Securities. Chemical Bank, N.A. is a lender and the administrative agent under the Company's Revolving Credit Agreement. State Street Bank and Trust Company will be the Trustee under the Indenture governing the Senior Subordinated Debt Securities. It is also the trustee under the indentures governing the Company's 12% Senior Subordinated Notes due 2001, its 11-1/2% Senior Subordinated Notes due 2002, and its 8.70% Senior Subordinated Notes due May 15, 2005. The Trustee with respect to the Indenture governing Subordinated Debt Securities will be specified in the applicable Prospectus Supplement relating thereto. If any Trustee were to have any conflicting interest at the time of any default under the Debt Securities, it would have to eliminate such conflict or resign as Trustee. (Section 608) Certain Definitions The following terms have the meanings ascribed to them below, except as otherwise provided with respect to any series of Debt Securities: The term "Attributable Debt" shall mean, as to any particular Capitalized Lease under which any Person is at the time liable, at any date of which the amount thereof is to be determined, the total net amount of rent required to be paid by such Person under such Capitalized Lease during the remaining primary term thereof, discounted from the respective due dates thereof to such date at the rate of interest per annum implicit in the terms of such Capitalized Lease, as determined in good faith by the Company. The net amount of rent required to be paid under such Capitalized Lease for any such period shall be the amount of the rent payable by the lessee with respect to such period, after excluding amounts required to be paid on account of maintenance, repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any Capitalized Lease which is terminable by the lessee upon the payment of a penalty, such net amount shall also include the amount of such penalty, but shall not include any rent required to be paid under such Capitalized Lease subsequent to the first date upon which it may be so terminated. The term "Consolidated Assets" shall mean the aggregate amount of assets, all as set forth on the most recent balance sheet of the Company and its consolidated Subsidiaries and computed in accordance with generally accepted accounting principles. The term "Funded Debt" shall mean all indebtedness for money borrowed having a maturity of more than 12 months from the date as of which the amount thereof is to be determined or having a maturity of less than 12 months but by its terms being renewable or extendable beyond 12 months from such date at the option of the borrower. The term "Nonrecourse Obligation" shall mean indebtedness or lease payment obligations substantially related to and entered into or effective before, at the time of or after (i) the acquisition (including any acquisition by merger or consolidation) of property or assets not currently owned by the Company or any of its Significant Subsidiaries or (ii) the financing of the acquisition, construction, development or improvement of property, equipment, mines or facilities of the Company or any of its Significant Subsidiaries, as to which the obligee with respect to such indebtedness or obligation has no recourse to the general corporate funds of the Company or any of its Significant Subsidiaries or to the assets, in general, of the Company or any of its Significant Subsidiaries, other than the property, equipment, mines or facilities acquired or constructed, improved or developed, or to property or mines, including undeveloped mineralized deposits or orebodies or segments thereof, on which the acquired or constructed, improved or developed property, equipment, mines or facilities is situated or that forms, with the property, equipment, mines or facilities acquired or constructed, improved or developed, an integrated plan to bring into or enhance the production of minerals or metals therefrom. The term "Person" shall mean any individual, corporation, partnership, joint venture, trust, association, company, joint-stock company, business trust, unincorporated organization or government or any agency or political subdivision thereof. The term "Principal Property" shall mean any smelters, refineries, mines, concentrators or other facilities, located within the present 50 states of the United States of America (other than its territories or possessions), owned by the Company or any Subsidiary, in each case the gross book value (without deduction of any depreciation reserves) of which on the date as of which the determination is being made exceeds 3% of Consolidated Assets, other than any such portion thereof which is pollution control or other equipment or facility financed by obligations issued by a State or local government unit; provided, however, that Principal Property shall not include any smelters, refineries, mines, concentrators or facilities or any portions thereof which the Board of Directors of the Company declares by resolution are not of material importance to the total business conducted by the Company and its Subsidiaries as an entirety. The term "Significant Subsidiary" shall mean any Subsidiary of the Company which owns a Principal Property and any Subsidiary that owns directly or indirectly stock of a Significant Subsidiary. The term "Subsidiary" shall mean a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. The term "Voting Stock" shall mean stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. DESCRIPTION OF PREFERRED STOCK The following is a description of certain general terms and provisions of the Preferred Stock. The particular terms of any series of Preferred Stock will be described in the applicable Prospectus Supplement. If so indicated in a Prospectus Supplement, the terms of any such series may differ from the terms set forth below. Certain provisions applicable to the Preferred Stock are set forth below under "Description of Common Stock." The summary of terms of the Company's Preferred Stock contained in this Prospectus does not purport to be complete and is subject to, and qualified in its entirety by, the provisions of the Company's Certificate of Incorporation and the certificate of designations relating to each series of the Preferred Stock (the "Certificate of Designations"), the form of which is an exhibit to the Registration Statement of which this Prospectus is a part. The Company's Certificate of Incorporation authorizes the issuance of 50,000,000 shares of preferred stock. In December 1993, the Company closed the sale of 2.0 million shares of 6% Cumulative Convertible Preferred Stock, Series E, $.01 par value. See "Series E Preferred Stock" below. Additionally, in July 1993, the Company issued 2.0 million shares of 5 5/8% Cumulative Convertible Preferred Stock, Series D, $.01 par value. See "Series D Preferred Stock" below. The Company also has 5,112,765 shares of Series C Convertible Preferred Stock, $.01 par value, reserved for issuance in certain instances. See "Reserved but Unissued Series C Convertible Preferred Stock" below. The Company's preferred stock may be issued from time to time in one or more series, without stockholder approval. Subject to limitations prescribed by law, the Board of Directors is authorized to determine the voting powers (if any), designation, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, for each series of preferred stock that may be issued, and to fix the number of shares of each such series. Thus, the Board of Directors, without stockholder approval, could authorize the issuance of preferred stock with voting, conversion and other rights that could adversely affect the voting power and other rights of holders of Common Stock or other series of preferred stock or that could have the effect of delaying, deferring or preventing a change in control of the Company. See "Description of Common Stock" herein. The Preferred Stock shall have the dividend, liquidation, redemption and voting rights set forth below unless otherwise provided in a Prospectus Supplement relating to a particular series of the Preferred Stock. The applicable Prospectus Supplement will describe the following terms of the series of Preferred Stock in respect of which this Prospectus is being delivered: (1) the designation and stated value per share of such Preferred Stock and the number of shares offered; (2) the amount of liquidation preference per share; (3) the initial public offering price at which such Preferred Stock will be issued and any exchange upon which the stock will be listed; (4) the dividend rate (or method of calculation), the dates on which dividends shall be payable and the dates from which dividends shall commence to cumulate, if any; (5) any redemption or sinking fund provisions; (6) any conversion or exchange rights; (7) whether the Company has elected to offer Depositary Shares as described below under "Description of Depositary Shares"; and (8) any additional voting, dividend, liquidation, redemption, sinking fund and other rights, preferences, privileges, limitations and restrictions. General The Preferred Stock offered hereby will be issued in one or more series. The holders of Preferred Stock will have no preemptive rights. Preferred Stock, upon issuance against full payment of the purchase price therefor, will be fully paid and nonassessable. Neither the par value nor the liquidation preference is indicative of the price at which the Preferred Stock will actually trade on or after the date of issuance. As described under "Description of Depositary Shares," the Company may, at its option, elect to offer Depositary Shares evidenced by Depositary Receipts, each representing a fractional interest (to be specified in the Prospectus Supplement relating to the particular series of the Preferred Stock) in a share of the particular series of the Preferred Stock issued and deposited with a Depositary (as defined below). Rank The Preferred Stock shall, with respect to dividend rights and rights on liquidation, winding up and dissolution of the Company, rank prior to the Company's Common Stock and to all other classes and series of equity securities of the Company now or hereafter authorized, issued or outstanding (the Common Stock and such other classes and series of equity securities collectively may be referred to herein as the "Junior Stock"), other than any classes or series of equity securities of the Company ranking on a parity with (the "Parity Stock") or senior to (the "Senior Stock") the Preferred Stock as to dividend rights and rights upon liquidation, winding up or dissolution of the Company. The Preferred Stock shall be junior to all outstanding debt of the Company. The Preferred Stock shall be subject to creation of Senior Stock, Parity Stock and Junior Stock to the extent not expressly prohibited by the Company's Certificate of Incorporation. Dividends Holders of shares of Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds of the Company legally available for payment, cash dividends, payable at such dates and at such rates per share per annum as set forth in the applicable Prospectus Supplement. Such rate may be fixed or variable or both. Each declared dividend shall be payable to holders of record as they appear at the close of business on the stock books of the Company (or, if applicable, on the records of the Depositary) on such record dates, not more than 60 calendar days preceding the payment dates therefor, as are determined by the Board of Directors (each of such dates, a "Record Date"). Such dividends may be cumulative or noncumulative, as provided in the Prospectus Supplement. If dividends on a series of Preferred Stock are noncumulative and if the Board of Directors fails to declare a dividend in respect of a dividend period with respect to such series, then holders of such Preferred Stock will have no right to receive a dividend in respect of such dividend period, and the Company will have no obligation to pay the dividend for such period, whether or not dividends are declared payable on any future dividend payment dates. Dividends on the shares of each series of Preferred Stock for which dividends are cumulative will accrue from the date on which the Company initially issues shares of such series. Accumulations of dividends on shares of Preferred Stock will not bear interest. No full dividends shall be declared or paid or set apart for payment on preferred stock of the Company of any series ranking, as to dividends, on a parity with or junior to the series of Preferred Stock offered by the Prospectus Supplement attached hereto for any period unless full dividends for the immediately preceding dividend period on such Preferred Stock (including any accumulation in respect of unpaid dividends for prior dividend periods, if dividends on such Preferred Stock are cumulative) have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is set apart for such payment. When dividends are not so paid in full (or a sum sufficient for such full payment is not so set apart) upon such Preferred Stock and any other preferred stock of the Company ranking on a parity as to dividends with the Preferred Stock, dividends upon shares of such Preferred Stock and dividends on such other preferred stock shall be declared pro rata so that the amount of dividends declared per share on such Preferred Stock and such Parity Stock shall in all cases bear to each other the same ratio that accrued dividends on the shares of such Preferred Stock and accrued dividends on shares of such Parity Stock, bear to each other as of their respective immediately preceding dividend periods. Unless full dividends on the series of Preferred Stock offered by the Prospectus Supplement attached hereto have been declared and paid or set apart for payment for the immediately preceding dividend period (including any accumulation in respect of unpaid dividends for prior dividend periods, if dividends on such Preferred Stock are cumulative), (a) no cash dividend or distribution (other than in shares of Junior Stock) may be declared, set aside or paid on the Junior Stock, (b) the Company may not, directly or indirectly, repurchase, redeem or otherwise acquire any shares of its Junior Stock (or pay any monies into a sinking fund for the redemption of any shares) except by conversion into or exchange for Junior Stock or in connection with any employee benefit plan or arrangement, and (c) the Company may not, directly or indirectly, repurchase, redeem or otherwise acquire any shares of such Preferred Stock or Parity Stock (or pay any monies into a sinking fund for the redemption of any shares of any such stock) otherwise than pursuant to pro rata offers to purchase or a concurrent redemption of all, or a pro rata portion, of the outstanding shares of such Preferred Stock and Parity Stock (except by conversion into or exchange for Junior Stock or in connection with any employee benefit plan or arrangement). Convertibility The terms, if any, on which shares of Preferred Stock of any series may be exchanged for or converted (mandatorily or otherwise) into shares of Common Stock of the Company or another series of preferred stock or other securities of the Company will be set forth in the Prospectus Supplement relating thereto. See "Description of Common Stock." Redemption The terms, if any, on which shares of Preferred Stock of any series may be redeemed will be set forth in the related Prospectus Supplement. Liquidation Unless otherwise specified in the applicable Prospectus Supplement, in the event of a voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, the holders of a series of Preferred Stock will be entitled, subject to the rights of creditors, but before any distribution or payment to the holders of Common Stock or any other security ranking junior to the Preferred Stock on liquidation, dissolution or winding up of the Company, to receive out of the assets of the Company, whether such assets are capital or surplus and whether or not any dividends as such are declared, an amount per share as set forth in the related Prospectus Supplement plus any accrued and unpaid dividends for prior dividend periods, if dividends on such series of Preferred Stock are cumulative. If the amounts available for distribution with respect to the Preferred Stock and all other outstanding stock of the Company ranking on a parity with the Preferred Stock upon liquidation are not sufficient to satisfy the full liquidation rights of all the outstanding Preferred Stock and stock ranking on a parity therewith, then the holders of each series of such stock will share ratably in any such distribution of assets in proportion to the full respective preferential amount (which in the case of preferred stock may include accumulated dividends) to which they are entitled. After payment of the full amount of the liquidation preference, the holders of shares of Preferred Stock will not be entitled to any further participation in any distribution of assets by the Company. Voting The Preferred Stock of a series will not be entitled to vote, except as provided below or in the applicable Prospectus Supplement and as required by applicable law. Unless otherwise specified in the related Prospectus Supplement, at any time dividends in an amount equal to six quarterly dividend payments on the Preferred Stock shall have accrued and be unpaid, holders of the Preferred Stock shall have the right to a separate class vote (together with the holders of shares of any Parity Stock upon which like voting rights have been conferred and are exercisable, "Voting Parity Stock") to elect two additional members to the Board of Directors at the next annual meeting of stockholders (or, if called by 25% in interest of such Preferred Stock, a special meeting of stockholders) and to maintain such director representation until dividends on the Preferred Stock have been paid in full (including any accumulation in respect of unpaid dividends from prior dividend periods, if dividends on such Preferred Stock are cumulative) or declared and a sum sufficient for the payment thereof is set apart for such payment. Additionally, without the affirmative vote of the holders of two-thirds of the shares of Preferred Stock then outstanding (voting separately as a class together with any Voting Parity Stock), the Company may not, either directly or indirectly or through merger or consolidation with any other corporation, (i) approve the authorization, creation or issuance, or an increase in the authorized or issued amount, of any class or series of stock ranking prior to the shares of Preferred Stock in rights and preferences, or (ii) amend, alter or repeal its Certificate of Incorporation or the Certificate of Designations relating to the Preferred Stock so as to materially and adversely change the voting powers, rights or preferences of the Preferred Stock, provided, however, that if any such amendment, alteration or repeal would materially adversely affect any voting powers, rights or preferences of the Preferred Stock or another series of Voting Parity Stock that are not enjoyed by some or all of the other series otherwise entitled to vote in accordance herewith, the affirmative vote of at least two-thirds of the votes entitled to be cast by the holders of all series similarly affected shall be required in lieu of the affirmative vote of at least two-thirds of the votes entitled to be cast by the holders of the shares of Preferred Stock and the Voting Parity Stock otherwise entitled to vote in accordance herewith; and provided, further, that no vote of the holders of Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect, or when the issuance of any such class or series of stock ranking prior to the shares of Preferred Stock in rights and preferences, is to be made, as the case may be, provision is made for the redemption of all shares of Preferred Stock at the time outstanding. An amendment which increases the number of authorized shares of or authorizes the creation or issuance of other classes or series of preferred stock ranking junior to or on a parity with the Preferred Stock with respect to the payment of dividends or distribution of assets upon liquidation, dissolution or winding up, or substitutes the surviving entity in a merger, consolidation, reorganization or other business combination for the Company, shall not be considered to be an adverse change requiring the approval of the Preferred Stock. As more fully described under "Description of Depositary Shares" below, if the Company elects to issue Depositary Shares, each representing a fraction of a share of a series of the Preferred Stock, each such Depositary Share will, in effect, be entitled to such fraction of a vote per Depositary Share. No Other Rights The shares of a series of Preferred Stock will not have any preferences, voting powers or relative, participating, optional or other special rights except as set forth above or in the related Prospectus Supplement, and in the Certificate of Incorporation and the Certificate of Designations related thereto, or as otherwise required by law. Transfer Agent and Registrar The transfer agent for each series of Preferred Stock will be described in the related Prospectus Supplement. Series E Preferred Stock In December 1993, the Company issued 2.0 million shares of 6% Cumulative Convertible Preferred Stock, Series E, $.01 par value (the "Series E Preferred Stock"). Holders of the Series E Preferred Stock are entitled to receive, when, as, and if declared by the Company's Board of Directors out of funds legally available therefore, cumulative cash dividends at the rate of 6% per annum (an amount equivalent to $3.00 per annum per share), payable quarterly in arrears. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of the Series E Preferred Stock will be entitled to receive distributions in the amount of $50.00 per share, plus all accrued and unpaid dividends. Each share of Series E Preferred Stock is convertible, in whole or in part, at any time, unless previously redeemed, into 3.5945 shares of Common Stock (equivalent to a conversion price of $13.91 per share of Common Stock). The conversion rate is subject to adjustment upon the occurrence of certain events. The Series E Preferred Stock ranks junior to all outstanding debt of the Company. With respect to the payment of dividends and amounts upon liquidation, dissolution or winding up, the Series E Preferred Stock ranks on a parity with the Company's Series D Preferred Stock and senior to the Common Stock and the Series C Preferred Stock. Whenever dividends on the Series E Preferred Stock are in arrears for six quarterly dividend periods, holders of the Series E Preferred Stock (voting separately as a class together with holders of shares of the Company's Series D Preferred Stock and any other class or series of equity securities ranking on a parity with the Series E Preferred Stock) will have the right to elect two additional directors to serve on the Company's Board of Directors until such dividend arrearage is eliminated. In addition, certain changes that would be materially adverse to the rights of holders of the Series E Preferred Stock and voting parity stock cannot be made without the affirmative vote of two-thirds of the shares of Series E Preferred Stock and voting parity stock, voting as a single class, entitled to be cast thereon. The Series E Preferred Stock is not redeemable prior to December 1, 1996. On and after such date, the Series E Preferred Stock is redeemable at the option of the Company, in whole or in part, initially for $52.10 per share and thereafter at prices declining ratably annually on each December 1 to $50.00 per share on and after December 1, 2003. Series D Preferred Stock In July 1993, the Company issued 2.0 million shares of 5-5/8% Cumulative Convertible Preferred Stock, Series D, $.01 par value (the "Series D Preferred Stock"). Holders of the Series D Preferred Stock are entitled to receive, when, as, and if declared by the Company's Board of Directors out of funds legally available therefore, cumulative cash dividends at the rate of 5-5/8% per annum (an amount equivalent to $2.8125 per annum per share), payable quarterly in arrears. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of the Series D Preferred Stock will be entitled to receive distributions in the amount of $50.00 per share, plus all accrued and unpaid dividends. Each share of Series D Preferred Stock is convertible, in whole or in part, at any time, unless previously redeemed, into 3.448 shares of Common Stock (equivalent to a conversion price of $14.50 per share of Common Stock). The conversion rate is subject to adjustment upon the occurrence of certain events. The Series D Preferred Stock ranks junior to all outstanding debt of the Company. With respect to the payment of dividends and amounts upon liquidation, dissolution or winding up, the Series D Preferred Stock ranks on a parity with the Company's Series E Preferred Stock and senior to the Common Stock and the Series C Preferred Stock. Whenever dividends on the Series D Preferred Stock are in arrears for six quarterly dividend periods, holders of the Series D Preferred Stock (voting separately as a class together with holders of shares of the Company's Series E Preferred Stock and any other class or series of equity securities ranking on a parity with the Series D Preferred Stock) will have the right to elect two additional directors to serve on the Company's Board of Directors until such dividend arrearage is eliminated. In addition, certain changes that would be materially adverse to the rights of holders of the Series D Preferred Stock and voting parity stock cannot be made without the affirmative vote of two-thirds of the shares of Series D Preferred Stock and voting parity stock, voting as a single class, entitled to be cast thereon. The Series D Preferred Stock is not redeemable prior to July 20, 1996. On and after such date, the Series D Preferred Stock is redeemable at the option of the Company, in whole or in part, initially for $51.969 per share and thereafter at prices declining ratably annually on each July 20 to $50.00 per share on and after July 20, 2003. Reserved but Unissued Series C Convertible Preferred Stock The Company has reserved 5,112,765 shares of Series C Convertible Preferred Stock, $.01 par value per share (the "Series C Preferred Stock"), for issuance upon exercise of outstanding warrants if, for any reason, it is unable to issue Common Stock to satisfy applicable exercise requirements. No Series C Preferred Stock is outstanding and the Company is not presently aware of any reason that would require it to issue such stock or preclude it from issuing Common Stock. The Series C Preferred Stock ranks, with respect to the payment of dividends and the distribution of assets, junior to all series of Preferred Stock. Subject to the rights of a superior series of preferred stock, each share of Series C Preferred Stock is entitled to receive, when, as, and if declared by the Board of Directors out of funds legally available for that purpose, dividends payable in cash in an amount per share equal to the aggregate per share amount of all cash dividends, and the aggregate per share amount of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock, declared on the Common Stock. Each share of Series C Preferred Stock is entitled to such number of votes as each share of Common Stock and, except as otherwise required by law, will vote together with the Common Stock as a single class. Each share of Series C Preferred Stock is convertible at any time into one share of fully paid and non-assessable Common Stock. If the Company declares any dividend on the Common Stock payable in shares of Common Stock, or effects a subdivision or combination or consolidation of the outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock, then the dividends and the number of votes per share to which holders of shares of Series C Preferred Stock are entitled to will be adjusted by multiplying the amount or number the holders were previously entitled to by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. The holders of Series C Preferred Stock have no preemptive rights and are not subject to redemption. In the event of liquidation, dissolution, or winding up of the Company, prior to distribution to the holders of shares of stock ranking junior to the Series C Preferred Stock, the holders of Series C Preferred Stock are entitled to $.10 per share plus an amount equal to any unpaid dividends and distributions on the Series C Preferred Stock, provided that the holders of Series C Preferred Stock shall be entitled to receive an aggregate amount per share, subject to certain adjustments, equal to the aggregate amount to be distributed per share to holders of shares of Common Stock. DESCRIPTION OF DEPOSITARY SHARES The description set forth below and in any Prospectus Supplement of certain provisions of the Deposit Agreement (as defined below) and of the Depositary Shares and Depositary Receipts does not purport to be complete and is subject to and qualified in its entirety by reference to the forms of Deposit Agreement and Depositary Receipts relating to each series of the Preferred Stock which have been or will be filed with the Commission at or prior to the time of the offering of such series of the Preferred Stock. General The Company may, at its option, elect to offer fractional interests in shares of Preferred Stock, rather than shares of Preferred Stock. In the event such option is exercised, the Company will provide for the issuance by a Depositary to the public of receipts for Depositary Shares, each of which will represent a fractional interest (to be set forth in the Prospectus Supplement relating to a particular series of the Preferred Stock which will be filed with the Commission at or prior to the time of the offering of such series of the Preferred Stock as described below). The shares of any series of the Preferred Stock underlying the Depositary Shares will be deposited under a separate Deposit Agreement (the "Deposit Agreement") between the Company and a bank or trust company selected by the Company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000 (the "Depositary"). The Prospectus Supplement relating to a series of Depositary Shares will set forth the name and address of the Depositary. Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will be entitled, in proportion to the applicable fractional interest in a share of Preferred Stock underlying such Depositary Shares, to all the rights and preferences of the Preferred Stock underlying such Depositary Share (including dividend, voting, redemption, conversion and liquidation rights). The Depositary Shares will be evidenced by Depositary Receipts issued pursuant to the Deposit Agreement. Pending the preparation of definitive engraved Depositary Receipts, the Depositary may, upon the written order of the Company, issue temporary Depositary Receipts substantially identical to (and entitling the holders thereof to all the rights pertaining to) the definitive Depositary Receipts but not in definitive form. Definitive Depositary Receipts will be prepared thereafter without unreasonable delay, and temporary Depositary Receipts will be exchangeable for definitive Depositary Receipts at the Company's expense. Upon surrender of Depositary Receipts at the office of the Depositary and upon payment of the charges provided in the Deposit Agreement and subject to the terms thereof, a holder of Depositary Shares is entitled to have the Depositary deliver to such holder the whole shares of Preferred Stock underlying the Depositary Shares evidenced by the surrendered Depositary Receipts. Dividends and Other Distributions The Depositary will distribute all cash dividends or other cash distributions received in respect of the Preferred Stock to the record holders of Depositary Shares relating to such Preferred Stock in proportion to the numbers of such Depositary Shares owned by such holders on the relevant record date. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any holder of Depositary Shares a fraction of one cent, and any balance not so distributed shall be added to and treated as part of the next sum received by the Depositary for distribution to record holders of Depositary Shares. In the event of a distribution other than in cash, the Depositary will distribute property received by it to the record holders of Depositary Shares entitled thereto, unless the Depositary determines that it is not feasible to make such distribution, in which case the Depositary may, with the approval of the Company, sell such property and distribute the net proceeds from such sale to such holders. The Deposit Agreement will also contain provisions relating to the manner in which any subscription or similar rights offered by the Company to holders of the Preferred Stock shall be made available to holders of Depositary Shares. Redemption of Depositary Shares If a series of the Preferred Stock underlying the Depositary Shares is subject to redemption, the Depositary Shares will be redeemed from the proceeds received by the Depositary resulting from the redemption, in whole or in part, of such series of the Preferred Stock held by the Depositary. The Depositary shall mail notice of redemption not less than 30 and not more than 60 days prior to the date fixed for redemption to the record holders of the Depositary Shares to be so redeemed at their respective addresses appearing in the Depositary's books. The redemption price per Depositary Share will be equal to the applicable fraction of the redemption price per share payable with respect to such series of the Preferred Stock. Whenever the Company redeems shares of Preferred Stock held by the Depositary, the Depositary will redeem as of the same redemption date the number of Depositary Shares relating to shares of Preferred Stock so redeemed. If less than all of the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro rata as may be determined by the Depositary. After the date fixed for redemption, the Depositary Shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the Depositary Shares will cease, except the right to receive the moneys payable upon such redemption and any money or other property to which the holders of such Depositary Shares were entitled upon such redemption upon surrender to the Depositary of the Depositary Receipts evidencing such Depositary Shares. Voting the Preferred Stock Upon receipt of notice of any meeting at which the holders of the Preferred Stock are entitled to vote, the Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such Preferred Stock. Each record holder of such 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 Depositary as to the exercise of the voting rights pertaining to the number of shares of Preferred Stock underlying such holder's Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote the number of shares of Preferred Stock underlying such Depositary Shares in accordance with such instructions, and the Company will agree to take all action which may be deemed necessary by the Depositary in order to enable the Depositary to do so. To the extent the Depositary does not receive specific instructions from the holders of Depositary Shares relating to such Preferred Stock, it will vote shares of Preferred Stock in accordance with the recommendation of the Company, unless otherwise indicated in the Prospectus Supplement. Amendment and Termination of Depositary Agreement The form of Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may at any time be amended by agreement between the Company and the Depositary. However, any amendment which materially and adversely alters the rights of the existing holders of Depositary Shares will not be effective unless such amendment has been approved by the record holders of at least a majority of the Depositary Shares then outstanding. A Deposit Agreement may be terminated by the Company or the Depositary only if (i) all outstanding Depositary Shares relating thereto have been redeemed or (ii) there has been a final distribution in respect of the Preferred Stock of the relevant series in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to the holders of the related Depositary Shares. Charges of Depositary The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company will pay charges of the Depositary in connection with the initial deposit of the Preferred Stock and any redemption of the Preferred Stock. Holders of Depositary Shares will pay other transfer and other taxes and governmental charges and such other charges as are expressly provided in the Deposit Agreement to be for their accounts. Miscellaneous The Depositary will forward to the holders of Depositary Shares all reports and communications from the Company which are delivered to the Depositary and which the Company is required to furnish to the holders of the Preferred Stock. Neither the Depositary nor the Company will be liable if it is prevented or delayed by law or any circumstance beyond its control in performing its obligations under the Deposit Agreement. The obligations of the Company and the Depositary under the Deposit Agreement will be limited to performance in good faith of their duties thereunder and they will not be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished. They may rely upon written advice of counsel or accountants, or information provided by persons presenting Preferred Stock for deposit, holders of Depositary Shares or other persons believed to be competent and on documents believed to be genuine. Resignation and Removal of Depositary The 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 Depositary, any such resignation or removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment. Such successor Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. DESCRIPTION OF COMMON STOCK The Company's Certificate of Incorporation authorizes the issuance of 100,000,000 shares of common stock, $.01 par value per share ("Common Stock"). The holders of Common Stock are entitled to receive dividends when and as declared by the Board of Directors of the Company out of funds legally available therefor, provided that if any shares of preferred stock are at the time outstanding, the payment of dividends on Common Stock or other distributions (including purchases of Common Stock) may be subject to the declaration and payment of full cumulative dividends, and the absence of arrearages in any mandatory sinking fund, on outstanding shares of preferred stock. The holders of Common Stock are entitled to one vote for each share on all matters voted on by stockholders, including elections of directors. The holders of Common Stock do not have any conversion, redemption or preemptive rights. In the event of the dissolution, liquidation or winding up of the Company, holders of Common Stock are entitled to share ratably in any assets remaining after the satisfaction in full of the prior rights of creditors, including holders of the Company's indebtedness, and the aggregate liquidation preference of any preferred stock then outstanding. All outstanding shares of Common Stock are, and the shares offered hereby, upon issuance, will be, fully paid and non-assessable. Certain provisions of the Company's Certificate of Incorporation and Bylaws may be considered as having an anti-takeover effect. Such provisions empower the Board of Directors to fix the rights and preferences of and to issue shares of preferred stock; limit certain substantial stockholders of the Company from significantly increasing their interest in the stock or assets of the Company without the consent of the Board of Directors and/or a supermajority of the stockholders of the Company; prohibit stockholders of the Company from calling a special meeting; place restrictions on the ability of stockholders to nominate persons for the position of director; and require that the Board of Directors be divided into three classes. In addition, certain provisions of law may have the effect of protecting the Company against undesired takeover attempts. Specifically, under Delaware law (and a similar provision of the Company's Certificate of Incorporation), in certain instances, significant holders (as specified) of the Company's voting stock may not, without approval of a specified vote of the other stockholders, or approval of the Company's Board of Directors (or the independent members thereof) prior to becoming a significant holder, acquire additional interests in the Company's assets or capital stock. The transfer agent for the Common Stock is Mellon Financial Services, whose address is 111 Founders Plaza, 11th Floor, East Hartford, Connecticut 06108. DESCRIPTION OF WARRANTS General The Company may issue Warrants, including Warrants to purchase Debt Securities ("Debt Warrants"), as well as other types of Warrants. Warrants may be issued independently of or together with any other Securities and may be attached to or separate from such Securities. Each series of Warrants will be issued under a separate warrant agreement (each a "Warrant Agreement") to be entered into between the Company and a warrant agent ("Warrant Agent"). The Warrant Agent will act solely as an agent of the Company in connection with the Warrants of such series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of Warrants. The following sets forth certain general terms and provisions of the Warrants offered hereby. Further terms of the Warrants and the applicable Warrant Agreement are set forth in the applicable Prospectus Supplement. Debt Warrants The applicable Prospectus Supplement will describe the following terms of the Debt Warrants in respect of which this Prospectus is being delivered: (1) the title of such Debt Warrants; (2) the aggregate number of such Debt Warrants; (3) the price or prices at which such Debt Warrants will be issued; (4) the currency or currencies, including composite currencies, in which the price of such Debt Warrants may be payable; (5) the designation, aggregate principal amount and terms of the Debt Securities purchasable upon exercise of such Debt Warrants; (6) if applicable, the designation and terms of the Debt Securities with which such Debt Warrants are issued and the number of such Debt Warrants issued with each such Debt Security; (7) the currency or currencies, including composite currencies, in which the principal of or any premium or interest on the Debt Securities purchasable upon exercise of such Debt Warrant will be payable; (8) if applicable, the date on and after which such Debt Warrants and any related Debt Securities will be separately transferable; (9) the price at which and currency or currencies, including composite currencies, in which the Debt Securities purchasable upon exercise of such Debt Warrants may be purchased; (10) the date on which the right to exercise such Debt Warrants shall commence and the date on which such right shall expire; (11) if applicable, the minimum or maximum amount of such Debt Warrants which may be exercised at any one time; (12) information with respect to book-entry procedures, if any; (13) if applicable, a discussion of certain United States Federal income tax considerations; and (14) any other terms of such Debt Warrants, including terms, procedures and limitations relating to the exchange and exercise of such Debt Warrants. Other Warrants The Company may issue other Warrants. The applicable Prospectus Supplement will describe the following terms of any such other Warrants in respect of which this Prospectus is being delivered: (1) the title of such Warrants; (2) the securities (which may include Preferred Stock or Common Stock) for which such Warrants are exercisable; (3) the price or prices at which such Warrants will be issued; (4) the currency or currencies, including composite currencies, in which the price of such Warrants may be payable; (5) if applicable, the designation and terms of the Debt Securities or Preferred Stock with which such Warrants are issued and the number of such Warrants issued with each such Debt Security or share of Preferred Stock; (6) if applicable, the date on and after which such Warrants and the related Debt Securities or Preferred Stock will be separately transferable; (7) if applicable, a discussion of certain United States Federal income tax considerations; and (8) any other terms of such Warrants, including terms, procedures and limitations relating to the exchange and exercise of such Warrants. PLAN OF DISTRIBUTION The Company may sell the Securities (and, in the case of Preferred Stock, Depositary Shares representing fractional interests therein) to one or more underwriters for public offering and sale by them or may sell the Securities (or Depositary Shares) to investors directly or through agents. Any such underwriter or agent involved in the offer and sale of the Securities (or Depositary Shares) will be named in the applicable Prospectus Supplement. The Company has reserved the right to sell the Securities (or Depositary Shares) directly to investors on its own behalf in those jurisdictions where it is authorized to do so. Underwriters may offer and sell the Securities (or Depositary Shares) at a fixed price or prices that may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The Company also may offer and sell the Securities (or Depositary Shares) in exchange for one or more of its outstanding series of equity or debt securities (including any outstanding Securities). The Company also may, from time to time, authorize dealers, acting as the Company's agents, to offer and sell the Securities (or Depositary Shares) upon such terms and conditions as set forth in the applicable Prospectus Supplement. In connection with the sale of the Securities (or Depositary Shares), underwriters may receive compensation from the Company in the form of underwriting discounts or commissions and may also receive commissions from purchasers of the Securities (or Depositary Shares) for whom they may act as agent. Underwriters may sell the Securities (or Depositary Shares) to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Any underwriting compensation paid by the Company to underwriters or agents in connection with the offering of the Securities (or Depositary Shares), and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth in the applicable Prospectus Supplement. Dealers and agents participating in the distribution of the Securities (or Depositary Shares) may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the Securities (or Depositary Shares) may be deemed to be underwriting discounts and commissions. Underwriters, dealers and agents may be entitled, under agreements entered into with the Company, to indemnification against and contribution toward certain civil liabilities. If so indicated in the applicable Prospectus Supplement, the Company will authorize dealers acting as the Company's agents to solicit agreements by certain institutions to purchase the Securities (or Depositary Shares) from the Company at the public offering price set forth in the applicable Prospectus Supplement pursuant to delayed delivery contracts ("Contracts") providing for payment and delivery on the date or dates stated in a Prospectus Supplement. Each Contract will be for an amount not less than, and the aggregate amount of the Securities (or Depositary Shares), based on the liquidation value thereof, sold pursuant to Contracts will be not less nor more than the respective amounts stated in a Prospectus Supplement. Institutions with whom Contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but will in all cases be subject to the approval of the Company. Contracts will be subject to the condition that the purchase by an institution of the Securities (or Depositary Shares) covered by Contracts will not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject. Any Securities issued hereunder (other than Common Stock) will be new issues of securities with no established trading market. Any underwriters or agents to or through whom such Securities are sold by the Company for public offering and sale may make a market in such Securities, but such underwriters or agents will not be obligated to do so and may discontinue any market at any time without notice. No assurance can be given as to the liquidity of the trading market for any Securities. Certain of the underwriters, dealers or agents and their associates may be customers of, engage in transactions with, and perform services for, the Company and certain of its affiliates in the ordinary course of business. EXPERTS The consolidated balance sheets as of December 31, 1994 and 1993, and the consolidated statements of operations, changes in stockholders' equity and cash flows and the related schedules for each of the three years in the period ended December 31, 1994, incorporated into this Prospectus and elsewhere in the Registration Statement, have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and are incorporated herein in reliance upon the authority of said firm as experts in giving said reports. With respect to the unaudited interim financial information for the quarters ended March 31, 1995 and 1994, Arthur Andersen LLP has applied limited procedures in accordance with professional standards for review of that information. However, their separate report thereon states that they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their report on that information should be restricted in light of the limited nature of the review procedures applied. In addition, the accountants are not subject to the liability provisions of Section 11 of the Securities Act of 1933 for their report on the unaudtited interim financial information because that report is not a "report" or a "part" of the registration statement prepared or certified by the accountants within the meaning of Sections 7 and 11 of the Act. VALIDITY OF THE SECURITIES The validity of the Securities will be passed upon for the Company by Snell & Wilmer L.L.P., One Arizona Center, Phoenix, Arizona 85004, counsel to the Company, and for any underwriters by the counsel named in the applicable Prospectus Supplement. PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. The estimated expenses in connection with the issuance and distribution of the securities being registered, other than Underwriting Compensation, are as follows: SEC registration fee . . . . . . . . . . . $ 68,966 Printing and engraving expenses . . . . . . $ 100,000 Legal fees and disbursements . . . . . . . $ 120,000 Accounting fees and disbursements . . . . . $ 50,000 Trustee's fees and disbursements . . . . . $ 25,000 Blue Sky fees and expenses . . . . . . . . $ 25,000 Miscellaneous (including transfer agent, listing and rating agency fees) . $ 100,000 --------- $ 488,966 ========= Item 15. Indemnification of Directors and Officers. The Certificate of Incorporation provides that the directors of the Company shall be under no liability to the Company for monetary damages for breach of fiduciary duty as a director of the Company except for those specific breaches and acts or omissions with respect to which the Delaware General Corporation Law (the "Delaware Law") expressly provides that a corporation's certificate of incorporation shall not eliminate or limit such personal liability of directors. Section 102(b)(7) of the Delaware Law provides that a corporation's certificate of incorporation may not limit the liability of directors for (i) breaches of their duty of loyalty to the corporation and its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) transactions from which a director derives improper personal benefit and (iv) unlawful dividends or unlawful stock repurchases under Section 174 of the Delaware Law. Under the Delaware Law, directors and officers as well as other employees and individuals, may be indemnified against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation, a "derivative action"), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interest of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard of care is applicable in the case of a derivative action, except that indemnification only extends to expenses (including attorneys' fees) incurred in connection with defense or settlement of such an action and the Delaware Law requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the Company. The Company's By-laws provide that each person who was or is made a party to, or is involved in, any action, suit or proceeding by reason of fact that he or she is or was a director, officer or employee of the Company (or was serving at the request of the Company as a director, officer, employee or agent for another entity) will be indemnified and held harmless by the Company to the full extent authorized by the Delaware Law, against all expense, liability or loss (including attorneys' fees, judgments, fines or penalties and amounts to be paid in settlement) reasonably incurred by such person in connection therewith. The Company's By-laws provide that rights conferred thereby are contract rights and will include the right to be paid by the Company for the expenses incurred in defending the proceedings specified above, in advance of their final disposition, except that, if the Delaware Law so requires, such payment will only be made upon delivery to the Company by the indemnified party of an undertaking to repay all amounts so advanced if it is ultimately determined that the person receiving such payments is not entitled to be indemnified under such provision or otherwise. The Company's By-laws provide that persons indemnified thereunder may bring suit against the Company to recover unpaid amounts claimed thereunder, and that if such suit is successful, the expense of bringing such a suit will be reimbursed by the Company. Item 16. Exhibits. Exhibit Page or Method Number Description of Filing --------- ----------- --------------- 1.1 Form of Underwriting Agreement (for (1) equity securities) 1.2 Form of Underwriting Agreement (for (1) debt securities) 4.1 Form of Certificate of Designations (1) with respect to Preferred Stock 4.2 Form of specimen certificate (1) representing shares of Preferred Stock 4.3 Specimen certificate representing shares of Common Stock (2) 4.4 Form of Deposit Agreement (1) 4.5 Form of Depositary Receipt (1) 4.6 Form of Indenture for Senior Debt (3) Securities 4.7 Form of Senior Debt Security (3) 4.8 Form of Indenture for Senior (4) Subordinated Debt Securities 4.9 Form of Senior Subordinated Debt (5) Security 4.10 Form of Indenture for Subordinated Debt (3) Securities 4.11 Form of Subordinated Debt Security (3) 4.12 Form of Preferred Stock Warrant (1) Agreement 4.13 Form of Preferred Stock Warrant (1) Certificate 4.14 Form of Common Stock Warrant Agreement (1) 4.15 Form of Common Stock Warrant (1) Certificate 4.16 Form of Debt Warrant Agreement (6) 4.17 Form of Debt Warrant Certificate (6) 5.1 Opinion of Snell & Wilmer L.L.P. Filed Herewith 12.1 Statement Regarding Computation of Consolidated Ratios of Earnings to Filed Herewith Fixed Charges 12.2 Statement Regarding Computation of Filed Herewith Earnings to Combined Fixed Charges and Preferred Stock Dividend Requirements 15.0 Letter re unaudited interim financial Filed Herewith information 23.0 Consent of Arthur Andersen LLP Filed Herewith 23.2 Consent of Snell & Wilmer L.L.P. Included in its opinion filed as Exhibit 5.1 24.1 Powers of Attorney Included on signature page 25.1 Form T-1 Statement of Eligibility under Filed Herewith the Trust Indenture Act of 1939 of State Street Bank and Trust Company 25.2 Form T-1 Statement of Eligibility under Filed Herewith the Trust Indenture Act of 1939 of Chemical Trust Company of California _______________ (1) Incorporated by reference to the corresponding Exhibit to the Registrant's Form S-3 (Registration No. 33-64030) filed on June 8, 1993. (2) Incorporated by reference to Exhibit 2 to the Registrant's Form 8-A dated October 30, 1992. (3) Incorporated by reference to the corresponding Exhibit to the Registrant's Form S-3 (Registation No. 33-53021) initally filed on April 7, 1994. (4) Incorporated by reference to Exhibit 99.1 to the Registrant's Current Report on Form 8-K filed on May 24, 1995 (the "May 1995 Form 8-K"). (5) Incorporated by reference to Exhibit 99.3 to the May 1995 Form 8-K. (6) Incorporated by reference to the corresponding Exhibit to Amendment No. 1 to the Registrant's Form S-3 (Registration No. 33-64050) filed on June 25, 1993 Item 17. Undertakings. 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 20% 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 (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 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. The undersigned registrant hereby undertakes: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. The undersigned registrant hereby undertakes 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 that time shall be deemed to be the initial bona fide offering thereof. The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Trust Indenture Act of 1939. 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 Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Magma Copper Company 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 on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tucson and State of Arizona on June 22, 1995. MAGMA COPPER COMPANY, a Delaware corporation By /s/ J. Burgess Winter ----------------------------------------- J. Burgess Winter President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Donald J. Donahue, J. Burgess Winter, Douglas J. Purdom and Andrew A. Brodkey, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Form S-3 Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in- fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or could do in person hereby ratifying and confirming all that said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated. Signature Title Date --------- ----- ---- /s/ Donald J. Donahue Chairman of the Board and June 22, 1995 - --------------------------- Director (for all signatures) Donald J. Donahue /s/ J. Burgess Winter President, Chief - --------------------------- Executive Officer, J. Burgess Winter Director (Principal Executive Officer) /s/ Douglas J. Purdom Vice President and Chief - --------------------------- Financial Officer Douglas J. Purdom (Principal Financial and Accounting Officer) /s/ Christopher W. Brody Director - --------------------------- Christopher W. Brody /s/ Judd R. Cool Director - --------------------------- Judd R. Cool /s/ John W. Goth Director - --------------------------- John W. Goth /s/ John R. Kennedy Director - --------------------------- John R. Kennedy /s/ Thomas W. Rollins Director - --------------------------- Thomas W. Rollins /s/ Henry B. Sargent Director - --------------------------- Henry B. Sargent /s/ Simon D. Strauss Director - --------------------------- Simon D. Strauss /s/ H. Wilson Sundt Director - --------------------------- H. Wilson Sundt /s/ John L. Vogelstein Director - --------------------------- John L. Vogelstein EX-5.1 2 OPINION OF SNELL & WILMER L.L.P. EXHIBIT 5.1 June 22, 1995 Magma Copper Company 7400 N. Oracle Road Suite 200 Tucson, Arizona 85704 Re: Registration Statement on Form S-3 Ladies and Gentlemen: At your request, we have examined the Registration Statement on Form S- 3 (the "Registration Statement") relating to the registration and sale from time to time by you of up to an aggregate of $200,000,000 of (i) 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, $.01 par value per share ("Preferred Stock"), in one or more series, (iii) depositary shares representing fractional interests in the Preferred Stock (the "Depositary Shares"), (iv) shares of common stock, $.01 par value per share ("Common Stock"), or (v) warrants ("Warrants") to purchase Debt Securities, Preferred Stock, Depositary Shares or Common Stock (Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Warrants are collectively referred to as the "Securities"), and such corporate records, certificates and other documents and such questions of law as we have considered necessary or appropriate for the purposes of this opinion. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Registration Statement. Based upon the foregoing, we advise you that in our opinion, when the following events have occurred: (a) The Registration Statement has become effective under the Securities Act of 1933, as amended; (b) The due authorization, approval and filing by you of the Certificate of Designation(s) setting forth the terms of the Preferred Stock; (c) The due authorization, execution and delivery of the Depositary Agreement pursuant to which the Depositary Shares are to be issued; (d) The due authorization, execution and delivery of the Warrant Agreement pursuant to which the Warrants are to be issued; (e) The due authorization, execution and delivery of the Indenture pursuant to which Debt Securities are to be issued, and the qualification of such Indenture under the Trust Indenture Act of 1939, as amended; (f) The due execution, registration and delivery of the certificate or certificates evidencing the Securities; and (g) The Securities have been established, issued and sold in the manner specified in the Registration Statement and the exhibits thereto, in accordance with corporate and governmental authorities and not in violation of any applicable law, agreement or instrument; then 1. The Preferred Stock to be issued by you, including the Preferred Stock represented by the Depositary Shares and the Preferred Stock issued upon exercise of any Warrants issued under the Registration Statement, will be legally issued, fully paid and non-assessable; 2. The Depositary Shares to be issued by you will be legally issued, fully paid and non-assessable; 3. The Common Stock to be issued by you, including any Common Stock that may be issuable pursuant to the conversion of any Preferred Stock or Debt Securities or upon the exercise of any Warrants, will be legally issued, fully paid and non-assessable; 4. The Debt Securities to be issued by you, including Debt Securities issued upon exercise of any Warrants issued under the Registration Statement, will be legally issued and binding obligations upon you, subject to the effect of (a) applicable reorganization or similar laws and court decisions affecting creditors' rights and remedies generally and (b) the application of general principles of equity (whether such enforceability is considered in a proceeding in equity or at law); and 5. The Warrants to be issued by you will be legally issued, and binding obligations upon you, subject to the effect of (a) applicable reorganization or similar laws and court decisions affecting creditors' rights and remedies generally and (b) the application of general principles of equity (whether such enforceability is considered in a proceeding in equity or at law). You have informed us that you intend to issue the Securities from time to time on a delayed or continuous basis. Accordingly, this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof. We understand that prior to issuing any Securities you will advise us in writing of the terms thereof, will afford us an opportunity to review the operative documents pursuant to which such Securities are to be issued (including the applicable Prospectus Supplement) and will file such supplement or amendment to this opinion (if any) as we may reasonably consider necessary or appropriate by reason of the terms of such Securities. We hereby consent to the use of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption "Validity of the Securities" in the Registration Statement and in the Prospectus and the form of Prospectus Supplement. Very truly yours, SNELL & WILMER L.L.P. EX-12.1 3 STATEMENT RE COMPUTATION OF RATIOS
FIXED CHARGE RATIOS (dollar amounts in thousands) For the three For the Years Ended Months Ended December 31, March 31, ------------------- ------------- 1990 1991 1992 1993 1994 '94 '95 ---- ---- ---- ---- ---- ----- ----- Fixed Charges: Interest Charges: Expensed ............................ $ 55,105 $ 50,048 $ 45,020 $ 34,663 $ 24,598 $ 5,861 $ 5,233 Capitalized ......................... -- -- -- 7,786 17,714 4,755 5,804 -------- -------- -------- -------- -------- -------- -------- Total Interest Charges ................ 55,105 50,048 45,020 42,449 42,312 10,616 11,037 Ammortization of Debt Expense ........... 2,932 3,118 255 363 446 105 127 Write-off of Loan Costs ................. -- 13,123 -- -- -- -- -- Rental Expense Considered Interest ...... 854 1,568 1,739 1,954 1,906 469 496 Preferred Stock Dividends................ -- -- -- -- -- -- -- Guarantees of other Debt ................ -- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -------- Total Fixed Charges(A) ................ 58,891 67,857 47,014 44,766 44,664 11,190 11,660 Fixed Charges Added to Income: Fixed Charges ......................... 58,891 67,857 47,014 44,766 44,664 11,190 11,660 Write-off of Loan Costs ............... -- -- -- -- -- -- -- Capitalized Interest Amortization ..... 702 1,050 639 572 796 175 226 Less Capitalized Interest ............. -- -- -- (7,786) (17,714) (4,755) (5,804) -------- -------- -------- -------- -------- -------- -------- Total Fixed Charges Added to Income ......................... 59,593 68,907 47,653 37,552 27,746 6,610 6,082 Pre-tax Income (excluding $14 million SFAS 106) ............. 108,673 (168,528) 80,900 31,511 109,760 10,427 68,611 Earnings(B) ............................. 168,266 (99,621) 128,553 69,063 137,506 17,037 74,693 Ratio of Earnings to Fixed Charges(B)/(A) .................... 2.9 -- 2.7 1.5 3.1 1.5 6.4 Earnings Deficiency ..................... $ -- $(167,478) $ -- $ -- $ -- $ -- $ --
EX-12.2 4 STATEMENT RE COMPUTATION OF RATIOS
FIXED CHARGE RATIOS WITH PREFERRED DIVIDENDS (dollar amounts in thousands) For the three For the Years Ended Months Ended December 31, March 31, ------------------- ------------- 1990 1991 1992 1993 1994 '94 '95 ---- ---- ---- ---- ---- ----- ----- Fixed Charges: Interest Charges: Expensed ...................... $ 55,105 $ 50,048 $ 45,020 $ 34,663 $ 24,598 $ 5,861 $ 5,233 Capitalized ................... -- -- -- 7,786 17,714 4,755 5,804 -------- -------- -------- -------- -------- -------- -------- Total Interest Charges .......... 55,105 50,048 45,020 42,449 42,312 10,616 11,037 Ammortization of Debt Expense ..... 2,932 3,118 255 363 446 105 127 Write-off of Loan Costs ........... -- 13,123 -- -- -- -- -- Rental Expense Considered Interest 854 1,568 1,739 1,954 1,906 469 496 Preferred Stock Dividends.......... 8,511 12,367 17,514 3,504 14,530 3,981 3,875 Guarantees of Other Debt .......... -- -- -- -- -- -- -- -------- -------- -------- -------- -------- -------- -------- Total Fixed Charges(A) .......... 67,402 80,224 64,528 48,270 59,194 15,171 15,535 Fixed Charges Added to Income: Fixed Charges ................... 67,402 80,224 64,528 48,270 59,194 15,171 15,535 Write-off of Loan Costs ......... -- -- -- -- -- -- -- Capitalized Interest Amortization 702 1,050 639 572 796 175 226 Less: Preferred Stock Dividends . (8,511) (12,367) (17,514) (3,504) (14,530) (3,981) (3,875) Capitalized Interest .... -- -- -- (7,786) (17,714) (4,755) (5,804) -------- -------- -------- -------- -------- -------- -------- Total Fixed Charges Added to Income ................... 59,593 68,907 47,653 37,552 27,746 6,610 6,082 Pre-tax Income (Loss) ............. 108,673 (168,528) 80,900 31,511 109,760 10,427 68,611 Earnings(B) ....................... 168,266 (99,621) 128,553 69,063 137,506 17,037 74,693 Ratio of Earnings to Fixed Charges(B)/(A) .............. 2.5 -- 2.0 1.4 2.3 1.1 4.8 Earnings Deficiency ............... $ -- $(179,845) $ -- $ -- -- -- --
EX-15.0 5 LETTER June 12, 1995 To Magma Copper Company: We are aware that Magma Copper Company will incorporate by reference in its Form S-3 Registration Statement, to be filed on or about June 22, 1995 its Form 10-Q for the quarter ended March 31, 1995, which includes our report dated April 14, 1995 covering the unaudited interim financial information contained therein. Pursuant to Regulation C of the Securities Act of 1933, (the Act) that report is not considered a part of the Registration Statement prepared or certified by our firm or a report prepared or certified by our firm within the meaning of Sections 7 and 11 of the Act. Very truly yours, ARTHUR ANDERSEN LLP EX-23.0 6 CONSENT CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Form S-3 Registration Statement for Magma Copper Company, of our report dated January 27, 1995 included in Magma Copper Company's Form 10-K for the year ended December 31, 1994, and to all references to our firm incorporated by reference in this registration statement. ARTHUR ANDERSEN LLP Tucson, Arizona, June 12, 1995. EX-25.1 7 FORM T-1 STATEMENT OF ELIGIBILITY EXHIBIT 25.1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)___ STATE STREET BANK AND TRUST COMPANY (Exact name of trustee as specified in its charter) Massachusetts 04-1867445 (Jurisdiction of incorporation or (I.R.S. Employer organization if not a U.S. national bank) Identification No.) 225 Franklin Street, Boston, Massachusetts 02110 (Address of principal executive offices) (Zip code) John R. Towers, Esq. Senior Vice President and Corporate Secretary 225 Franklin Street, Boston, Massachusetts 02110 (617) 654-3253 (Name, address and telephone number of agent for service) MAGMA COPPER COMPANY (Exact name of obligor as specified in its charter) Delaware 86-0219794 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 7400 North Oracle Road Suite 200 Tucson, Arizona 85704 (Address of principal executive offices) (Zip code) Senior Subordinated Debt Securities (Title of indenture securities) GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Department of Banking and Insurance of The Commonwealth of Massachusetts, 100 Cambridge Street, Boston, Massachusetts. Board of Governors of the Federal Reserve System, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. The obligor is not an affiliate of the trustee or of its parent, State Street Boston Corporation. (See Note on page 6.) Item 3. Voting Securities of the Trustee. Furnish the following information as to each class of voting securities of the trustee: As of: Col. A Col. B Title of Class Amount outstanding Not applicable. Item 4. Trusteeships under Other Indentures. If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, furnish the following information: (a) Title of the securities outstanding under each such other indenture. Not applicable. (b) A brief statement of the facts relied upon as a basis for the claim that no conflicting interest within the meaning of Section 310(b)(1) of the Act arises as a result of the trusteeship under any such other indenture, including a statement as to how the indenture securities will rank as compared with the securities issued under such other indenture. Not applicable. Item 5. Interlocking Directorates and Similar Relationships with the Obligor or Underwriters. If the trustee or any of the directors or executive officers of the trustee is a director, officer, partner, employee, appointee or representative of the obligor or of any underwriter for the obligor, identify each such person having any such connection and state the nature of each such connection. Not applicable. Item 6. Voting Securities of the Trustee Owned by the Obligor or Its Officials. Furnish the following information as to the voting securities of the trustee owned beneficially by the obligor and each director, partner and executive officer of the obligor: As of: Col. A Col. B Col. C Col. D Name of Title of Amount owned Percentage of owner class beneficially voting securities represented by amount given in Col. C Not applicable. Item 7. Voting Securities of the Trustee Owned by Underwriters or Their Officials. Furnish the following information as to the voting securities of the trustee owned beneficially by each underwriter for the obligor and each director, partner and executive officer of each such underwriter: As of: Col. A Col. B Col. C Col. D Name of Title of Amount owned Percentage of owner class beneficially voting securities represented by amount given in Col. C Not applicable. Item 8. Securities of the Obligor Owned or Held by the Trustee. Furnish the following information as to securities of the obligor owned beneficially or held as collateral security for obligations in default by the trustee: As of: Col. A Col. B Col. C Col. D Title of Whether Amount owned Percent of class the securities beneficially class repre- are voting or or held as sented by non-voting collateral security amount given securities for obligations in Col. C in default Not applicable. Item 9. Securities of Underwriters Owned or Held by the Trustee. If the trustee owns beneficially or holds as collateral security for obligations in default any securities of an underwriter for the obligor, furnish the following information as to each class of securities of such underwriter any of which are so owned or held by the trustee: As of: Col. A Col. B Col. C Col. D Title of Amount Amount owned Percent of issuer outstanding beneficially class represented and title or held as by amount of class collateral security given in Col. C for obligations in default by trustee Not applicable. Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain Affiliates or Security Holders of the Obligor. If the trustee owns beneficially or holds as collateral security for obligations in default voting securities of a person who, to the knowledge of the trustee (1) owns 10 percent or more of the voting securities of the obligor or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the following information as to the voting securities of such person: As of: Col. A Col. B Col. C Col. D Title of Amount Amount owned Percent of issuer outstanding beneficially class represented and title or held as by amount of class collateral security given in Col. C for obligations in default by trustee Not applicable. Item 11. Ownership or Holdings by the Trustee of any Securities of a Person Owning 50 Percent or More of the Voting Securities of the Obligor. If the trustee owns beneficially or holds as collateral security for obligations in default any securities of a person who, to the knowledge of the trustee, owns 50 percent or more of the voting securities of the obligor, furnish the following information as to each class of securities of such person any of which are so owned or held by the trustee: As of: Col. A Col. B Col. C Col. D Title of Amount Amount owned Percent of issuer outstanding beneficially class represented and title or held as by amount of class collateral security given in Col. C for obligations in default by trustee Not applicable. Item 12. Indebtedness of the Obligor to the Trustee. Except as noted in the instructions, if the obligor is indebted to the trustee, furnish the following information: As of: Col. A Col. B Col. C Nature of Amount Date due indebtedness outstanding Not applicable. Item 13. Defaults by the Obligor. (a) State whether there is or has been a default with respect to the securities under this indenture. Explain the nature of any such default. Not applicable. (b) If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, or is a trustee for more than one outstanding series of securities under the indenture, state whether there has been a default under any such indenture or series, identify the indenture or series affected, and explain the nature of any such default. To the best of the knowledge of the Trustee, there has not been a default under any such indenture or series. Item 14. Affiliations With the Underwriters. If an underwriter is an affiliate of the trustee, describe each such affiliation. Not applicable. Item 15. Foreign Trustee. Identify the order or rule pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. Not applicable. Item 16. List of Exhibits. List below all exhibits filed as a part of this statement of eligibility. 1. A copy of the articles of association of the trustee as now in effect. A copy of the Articles of Association of the trustee, as now in effect, is on file with the Securities and Exchange Commission as Exhibit 1 to Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference thereto. 2. A copy of the certificate of authority of the trustee to commence business, if not contained in the articles of association. A copy of a Statement from the Commissioner of Banks of Massachusetts that no certificate of authority for the trustee to commence business was necessary or issued is on file with the Securities and Exchange Commission as Exhibit 2 to Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference thereto. 3. A copy of the authorization of the trustee to exercise corporate trust powers, if such authorization is not contained in the documents specified in paragraph (1) or (2) above. A copy of the authorization of the trustee to exercise corporate trust powers is on file with the Securities and Exchange Commission as Exhibit 3 to Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference thereto. 4. A copy of the existing by-laws of the trustee, or instruments corresponding thereto. A copy of the By-Laws of the trustee, as now in effect, is on file with the Securities and Exchange Commission as Exhibit 4 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with Registration Statement of Eastern Edison Company (File No. 33-37823) and is incorporated herein by reference thereto. 5. A copy of each indenture referred to in Item 4, if the obligor is in default. Not applicable. 6. The consents of the United States institutional trustees required by Section 321(b) of the Act. The consent of the trustee required by Section 321(b) of the Act is annexed hereto as Exhibit 6 and made a part hereof. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority is annexed hereto as Exhibit 7 and made a part hereof. 8. A copy of any order pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. Not applicable. 9. Foreign trustees are required to furnish a consent to service of process. Not applicable. NOTE The answers to this statement insofar as such answers relate to persons who are affiliates of the obligors are based upon information furnished to the trustee by the obligors. While the trustee has no reason to doubt the accuracy of any such information, it cannot accept any responsibility therefor. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee, State Street Bank and Trust Company, a corporation organized and existing under the laws of The Commonwealth of Massachusetts, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Quincy and The Commonwealth of Massachusetts, on the 12th day of June, 1995. STATE STREET BANK AND TRUST COMPANY By /s/ Ruth A. Smith ___________________________________ Ruth A. Smith Assistant Vice President EXHIBIT 6 CONSENT OF TRUSTEE Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939 in connection with the proposed issuance by Magma Copper Company of its Senior Subordinated Debt Securities, we hereby consent that reports of examination by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. STATE STREET BANK AND TRUST COMPANY By /s/ Ruth A. Smith ___________________________________ Ruth A. Smith Assistant Vice President Dated: June 12, 1995 Exhibit 7 Consolidated Report of Condition of State Street Bank and Trust Company of Boston, Massachusetts and foreign and domestic subsidiaries, a state banking institution organized and operating under the banking laws of this commonwealth and a member of the Federal Reserve System, at the close of business December 31, 1994, published in accordance with a call made by the Federal Reserve Act and in accordance with a call made by the Commissioner of Banks under General Laws, Chaper 172, Section 22(a). Thousands of dollars ASSETS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin...... 942,661 Interest-bearing balances............................... 4,843,628 Securities................................................. 8,410,339 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its Edge subsidiary.................. 2,240,374 Loans and Lease financing receivables: Loans and Leases, net of unearned income..... 3,257,795 Allowance for Loan and Lease Losses.......... 58,184 Loans and Leases, net of unearned income and allowance.. 3,199,611 Assets held in trading accounts............................ 825,549 Premises and fixed assets.................................. 375,086 Other real estate owned.................................... 4,359 Investments in unconsolidated subsidiaries................. 25,051 Customers' Liability to this bank on acceptances outstanding............................................. 55,358 Intangible assets.......................................... 34,862 Other assets............................................... 653,750 ---------- Total assets............................................... 21,610,628 ========== LIABILITIES Deposits: In domestic offices..................................... 5,946,262 Noninterest-bearing...................... 4,175,167 Interest-bearing......................... 1,771,095 In foreign offices and Edge subsidiary.................. 8,147,182 Noninterest-bearing...................... 44,817 Interest-bearing......................... 8,102,365 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge subsidiary..................... 4,912,704 Demand notes issued to the U.S. Treasury and Trading Liabilities............................................. 423,324 Other borrowed money....................................... 386,049 Bank's liability on acceptances executed and outstanding... 55,621 Other liabilities.......................................... 530,536 ---------- Total liabilities.......................................... 20,401,678 ---------- EQUITY CAPITAL Common Stock............................................... 28,043 Surplus.................................................... 177,736 Undivided profits.......................................... 1,003,171 ---------- Total equity capital....................................... 1,208,950 ---------- Total liabilities and equity capital....................... 21,610,628 ========== I, Rex S. Schuette, Senior Vice President and Comptroller of the above named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. Rex S. Schuette We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct. David A. Spina Marshall N. Carter Charles F. Kaye EX-25.2 8 FORM T-1 STATEMENT OF ELIGIBILITY CONFORMED SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 --------------------------- FORM T-1 Statement of Eligibility and Qualification Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee -------------------------- CHEMICAL TRUST COMPANY OF CALIFORNIA (Exact name of trustee as specified in its charter) CALIFORNIA 94-2926573 (State of incorporation (I.R.S. employer if not a national bank) Identification No.) 50 California Street San Francisco, California 94111 (Address of principal executive offices) (Zip Code) ------------------------------- Magma Copper Company (Exact name of Obligor as specified in its charter) Delaware 86-0219794 (State or other jurisdiction of (I.R.S. employer incorporation or organization) Identification No.) 7400 North Oracle Road Suite 200 Tucson, Arizona 85704 (Address of principal executive offices) (Zip Code) -------------------------------- Senior Debt Securities (Title of indenture securities) 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Superintendent of Banks of the State of California, 235 Montgomery Street, San Francisco, CA 94104-2980. Board of Governors of the Federal Reserve System, Washington, DC. 20511. (b) Whether it is authorized to exercise corporate trust powers. Yes. 2. Affiliations with Obligor and Underwriters. If the Obligor or any Underwriter for the Obligor is an affiliate of the trustee, describe each such affiliation. No such affiliation with the Obligor or Underwriters. (Item 2 is at the date hereof based upon incomplete information but is believed to be correct and may be considered to be complete unless modified by an amendment to this Form T-1). 16. List of Exhibits. Exhibit 1. Articles of Incorporation of the Trustee as Now in Effect. Exhibit 2. Certificate of Authority of the Trustee to Commence Business. Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust Powers (Contained in Exhibit 2.) Exhibit 4. Existing By-Laws of the Trustee. Exhibit 5. Not Applicable Exhibit 6. Consent of the Trustee. Exhibit 7. Report of Condition of the Trustee. Exhibit 8. Not Applicable Exhibit 9. Not Applicable SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Chemical Trust Company of California, a corporation organized and existing under the laws of the State of California, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Los Angeles, and State of California, on the 22nd day of June, 1995. CHEMICAL TRUST COMPANY OF CALIFORNIA By s/Paula Oswald ------------------------------- PAULA OSWALD Assistant Vice President Exhibit 1. Restated Articles of Incorporation of the Trustee as now in Effect. - ------------------------------------------------------------------------------- RESTATED ARTICLES OF INCORPORATION OF MANUFACTURES HANOVER TRUST COMPANY OF CALIFORNIA Lynn E. Loveall and Denise M. Westermark hereby certify as follows. 1. They are the vice president and the assistant secretary respectively, of Manufacturers Hanover Trust Company of California. 2. The Articles of Incorporation of Manufacturers Hanover Trust Company of California are amended and restated to read in full as follows: One: The name of the Corporation is: Manufacturers Hanover Trust Company of California Two: The purpose of the corporation is to engage in the commercial banking business and the trust business and any other lawful activities which are not, by applicable laws or regulations, prohibited to a commercial bank authorized to engage in the trust business; provided, however, that this corporation shall not engage in the business of making loans, investments or accepting deposits except for (a) deposits that are generated from trust funds not currently invested and that are properly secured to the extent required by law; (b) deposits representing funds received for a special use in the capacity of managing agent or custodian for an owner of, or investor in, real property, securities, or other personal property; or for such owner or investor as agent or custodian of funds held for investment or as escrow agent; or for an issuer of, or broker or dealer in securities, in ac capacity such as paying agent, dividend disbursing agent, or securities clearing agent; provided such deposits are not employed by or for the account of the customer in the manner of a general purpose checking account or interest-bearing account; or (c) making call loans to securities dealers or purchasing money market instruments such as certificates of deposit, commercial paper, government or municipal securities, and bankers acceptances; provided, however that such authorized loans and investments may not be used as a method of channeling funds to non-banking affiliates of the corporation. Three: The total number of shares which the corporation is authorized to issue is one hundred (100) shares of $100 par value each. The shares of the corporation are subject to assessment by the corporation by order of the Superintendent of Banks of the State of California for the purpose of correcting an impairment of contributed capital in the manner and to the extent provided in Division 1 of the California Financial Code. Four: No amendment to these Articles of Incorporation shall become effective unless the certificate of amendment or other instrument setting forth such amendment is filed with the Secretary of State of the State of California with the approval of the Superintendent of Banks of the State of California endorsed thereon. Promptly after the amendment becomes effective, a copy of such certificate of amendment or other instrument certified by the Secretary of State shall be filed with the Superintendent of Banks. 3. The amendment and restatement set forth herein have been duly approved by the Board of Directors of Manufacturers Hanover Trust Company of California. 4. The amendment and restatement set forth herein have been duly approved by the required vote of shareholders in accordance with sections 902 and 903 of the California Corporation Code. The corporation has outstanding 100 shares. The number of shares voting in favor of the amendment exceeded 50%, satisfying the voting requirements necessary to pass the amendment. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge Dated: 12/23/86 /s Lynn C. Loveall --------------------- -------------------- Lynn C. Loveall Vice President /s Denise M. Westermark -------------------- Denise M. Westermark Assistant Secretary CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION Nicholas J. Papanikolaw and Anthony J. Horan Certify that: 1. They are the chairman of the board and the assistant secretary, respectively, of MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA, a California corporation. 2. Article One of the Articles of Incorporation of this corporation is amended to read as follows: One The name of the corporation is: Chemical Trust Company of California 3. The foregoing amendment of Articles of Incorporation has been duly approved by the unanimous vote of share holders in accordance with Section 902 of the Corporation Code. We further declare under the penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. Date: March 26, 1992 ----------------- /s Nicholas J. Papanikolaw --------------------------- Chairman /s Anthony J. Horan --------------------------- Assistant Secretary Exhibit 2. Certificate of Authority of the Trustee to Commence Business. - -------------------------------------------------------------------------------- No. 1476 State of California State Banking Department Whereas, after due examination it appears that Chemical Trust Company of California having its principal place of business in the City and County of San Francisco, State of California, has complied with all the provisions of the Banking Law of the State of California, and with all other necessary requirements of law relating thereto; Now Therefore, I, the undersigned, Superintendent of Banks of the State of California, do certify that said bank is qualified and is hereby authorized to transact a trust banking business at 50 California Street in the City and County of San Francisco, State of California. In Testimony Whereof witness my hand and Seal this 9th day of April, 1984 at San Francisco, California. /s LOUIS CARTER Superintendent of Banks State of California (Seal of Superintendent of Banks of the State of California) Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust Powers. - -------------------------------------------------------------------------------- (Contained in Exhibit 2.) Exhibit 4. Existing By-Laws of the Trustee. - -------------------------------------------------------------------------------- BY-LAWS OF MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA ARTICLE I PRINCIPAL OFFICE Section 1. The head office for the transaction of the business of the corporation is hereby fixed and located at San Francisco, California. The Board of Directors may change said head office from one location to another with the written approval of the Superintendent of Banks of the State of California. Section 2. The Board of Directors may establish and maintain one or more branch offices within the State of California when authorized by the Superintendent of Banks of the State of California. ARTICLE II Meetings of Shareholders Section 1. All meetings of the shareholders shall be held at any place within or without the State of California which may be designated either by the Board of Directors or by the written consent of all shareholders entitled to vote thereat and not present at the meeting given either before or after the meeting and filed with the secretary of the corporation. In the absence of any such designation, shareholders' meetings shall be held at the head office of the corporation. Section 2. The annual meeting of the shareholders of the corporation shall be held at such time in each year as may be designated from time to time by the Board of Directors. At such meeting, directors shall be elected and any other proper business may be transacted which is within the powers of the shareholders. Written notice of each annual meeting shall be given to each shareholder entitled to vote either personally or by first-class mail or other means of written communication (which includes, without limitation and wherever used in these By-Laws, telegraphic and facsimile communication), charges prepaid, addressed to each shareholder at the address appearing on the books of the corporation, or given by the shareholder to the corporation for the purpose of notice. If any notice or report addressed to the shareholder at the address of such shareholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice or report to the shareholder at such address, all future notices or reports shall be deemed to have been duly given without further mailing if the same shall be available for the shareholder upon written demand of the shareholder at the principal executive office of the corporation for a period of one (1) year from the date of the giving of the notice or report to all other shareholders. If no address of a shareholder appears on the books of the corporation or is given by the shareholder to the corporation, notice is duly given to him if sent by mail or other means of written communication addressed to the place where the principal executive office of the corporation is located or if published at least once in a newspaper or general circulation in the county in which said principal executive office is located. All such notices shall be given to each shareholder entitled thereto not less than ten (10) days nor more than sixty (60) days before each annual meeting. Any such notice shall be deemed to have been given at the time when delivered personally or deposited in the United States mail or delivered to a common carrier for transmission to the recipient or actually transmitted by the person giving the notice by electronic means to the recipient or sent by other means of written communication. Such notices shall state: (a) the place, date and hour of the meeting; (b) those matters which the Board, at the time of the mailing of the notice, intends to present for action by the shareholders; (c) if directors are to be elected, the names of nominees intended at the time of the notice to be presented by management for election; and (d) such other matters,if any, as may be expressly required by statute. Section 3. Special meetings of the shareholders for the purpose of taking any action permitted to be taken by the shareholders under the General Corporation Law, the California Banking Law and the Articles of Incorporation of this corporation, may be called by the chairman of the board or the president, or by any vice president, or by the Board of Directors, or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at the meeting. Except in special cases where other express provision is made by statute, notice of such special meetings shall be given in the same manner and contain the same statements as required for annual meetings of shareholders. Notice of any special meeting shall also specify the general nature of the business to be transacted, and no other business may be transacted at such meeting. Section 4. The presence in person or by proxy of the holders of a majority of the shares entitled to vote at any meeting shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum. In the absence of a quorum, any meeting of shareholders may be adjourned from time to time by the vote of a majority of the shares represented either in person or by proxy, but no other business may be transacted except as provided in the preceding sentence. Section 5. The affirmative vote of a majority of the shares represented and voting at a duly held meeting at which a quorum is present (which shares voting affirmatively shall constitute at least a majority of the required quorum) shall be the act of the shareholders except as may otherwise be provided by (i) Section 4 of this Article II, (ii) the cumulative voting provisions for this election of directors as stated in this Section below, and (iii) the California General Corporation Law, the California Banking Law or the Articles of Incorporation of this corporation. Subject to the requirements of the next sentence, every shareholder entitled to vote at any election for directors may cumulate his votes and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which his shares are normally entitled, or distribute his votes on the same principle among as many candidates as he shall think fit. No shareholder shall be entitled to cumulate votes unless such candidate or candidates' names have been placed in nomination prior to the voting and the shareholder has given notice at the meeting prior to the voting of the shareholder's intention to cumulate his votes. If any one shareholder has given such notice, all shareholders may cumulate their votes for candidates in nomination. The candidates receiving the highest number of votes of shares entitled to be voted for them, up to the number of directors to be elected, shall be elected. Section 6. Any action which, under any provision of the laws of the State of California, may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by persons entitled to vote a majority of the shares of the corporation, and filed with the secretary of the corporation. Section 7. Every person entitled to vote or execute consents shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such person or his duly authorized agent and filed with the secretary. Proxies shall be valid and shall be executed in accordance with Section 705 of the General Corporation Law or successor section thereto. ARTICLE III Board of Directors Section 1. Subject to the provisions of the California General Corporation Law, the California Banking Law and any limitations in the Articles of Incorporation and these By-Laws as to action to be authorized or approved by the shareholders, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board of Directors. Section 2. The authorized number of directors shall not be less than six (6) nor more than eleven (11). The exact authorized number of directors shall be fixed from time to time, within the limits specified in this Section or in the Articles of Incorporation, by the Board of Directors, or by a By-law or amendment thereof duly adopted by the vote of a majority of the shares represented and voting at a duly held meeting at which a quorum is present (which shares voting affirmatively also constitute at least a majority of the required quorum), or by the written consent of the holders of a majority of the outstanding shares entitled to vote, until changed by a duly adopted amendment to the Articles of Incorporation or by an amendment to this Section adopted by approval of the holders of a majority of the outstanding shares. No amendment shall be adopted reducing the minimum authorized number of Directors to a number less than five (5). Section 3. The directors shall be elected at each annual meeting of shareholders, but if any such annual meeting is not held or the directors are not elected thereat, the directors may be elected at any special meeting of shareholders held for that purpose or by unanimous written consent of all shares entitled to vote for the election of directors. Each director, including a director elected to fill a vacancy, shall hold office until his successor is elected, except as otherwise provided by statute. Section 4. Vacancies in the Board of Directors, except for a vacancy created by the removal of a director, may be filled by a majority of the directors then in office, whether or not less than a quorum, or by a sole remaining director. Section 5. Each director upon taking office, after the corporation's receipt of a Certificate of Authority to transact business as a trust company from the Superintendent of Banks of the State of California, shall make an oath or affirmation as required by Section 682 of the California Financial Code or successor section thereto, and each such oath, subscribed by the director and certified by the officer before whom it is taken, shall be immediately filed with the Superintendent of Banks. ARTICLE IV Meetings of Directors Section 1. The Board of Directors shall hold a regular or special meeting at least once each calendar month. Regular meetings of the Board of Directors shall be held at any time and place within the State of California that has been designated by resolution from time to time by the Board of Directors. In the absence of such designation, regular meetings shall be held at the head office of the corporation, except as otherwise provided in this Section 1. Immediately following each annual meeting of the shareholders there shall be a regular meeting of the Board of Directors of the corporation within the State of California at the place of said annual meeting or at such other place as shall have been designated by the Board of Directors for the purpose of organization, election of officers and the transaction of other business. Other regular meetings of the Board of Directors shall be held without call on such date and time as may be fixed by the Board of Directors; provided, however, that should any such day fall on a legal holiday, then said meeting shall be held at the same time on the next business day thereafter ensuing which is not a legal holiday. Notice of regular meetings of the directors is hereby dispensed with and no notice whatever of any such meeting need be given, provided that notice of any change in the time or place of regular meetings shall be given to all of the directors in the same manner as notice for special meetings of the Board of Directors. Section 2. Special meetings of the Board of Directors may be held at any place within or without the State of California which has been designated in the notice of the meeting, or, if not designated in the notice or if there is no notice, at the head office of the corporation. Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the chairman of the Board or president or by any two directors. Notice of the time and place of special meetings shall be delivered personally or by telephone to each director, or sent by first-class mail or telegram or facsimile transmission, charges prepaid, addressed to him at his address as it appears upon the records of the corporation or, if it is not so shown on the records and is not readily ascertainable, at the place at which the meetings of the directors are regularly held. In case such notice is mailed, it shall be deposited in the United States mail at least four (4) days prior to the time of the holding of the meeting. In case such notice is telegraphed or sent by facsimile transmission, it shall be delivered to a common carrier for transmission to the director or actually transmitted by the person giving the notice by electronic means to the director at least twenty-four (24) hours prior to the time of the holding of the meeting. Any notice given personally or by telephone may be communicated to either the director or to a person at the office of the director whom the person giving the notice has reason to believe will promptly communicate it to the director. Such deposit in the mail, delivery to a common carrier, transmission by electronic means or delivery, personally or by telephone, as above provided, shall be due, legal and personal notice to such directors. The notice need not specify the place of the meeting if the meeting is to be held at the head office of the corporation, and need not specify the purpose of the meeting. Section 3. Presence of a majority of the authorized number of directors at a meeting of the Board of Directors constitutes a quorum for the transaction of business, except as hereinafter provided. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be deemed the act of the Board of Directors, subject to the provisions of Section 310, 311 and 317 of the California General Corporation Law. Members of the Board may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, provided that any action taken is approved by at least a majority of the required quorum for such meeting. A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place. If the meeting is adjourned for more than twenty-four (24) hours, notice of any adjournment to another time or place shall be given prior to the time of the adjourned meeting to the directors who were not present at the time of the adjournment. Section 4. Notice of a meeting need not be given to any director who signs a waiver of notice or consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such director. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Section 5. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such directors. Section 6. The provisions of this Article IV shall also apply, with necessary changes in points of detail, to committees of the Board of Directors, if any, and to actions by such committees (except that regular meetings of committees shall be established by the committees and except that special meetings of a committee may also be called at any time by any two members of the committee), unless otherwise provided by these By-Laws or by the resolution of the Board of Directors designating such committees. For such purpose, references to "the Board" or "the Board of Directors" shall be deemed to refer to each such committee and references to "directors" or "members of the Board" shall be deemed to refer to members of the committee. Committees of the Board of Directors may be designated, and shall be subject to the limitations on their authority, as provided in Section 311 of the General Corporation Law or any successor section thereto. The appointment of members or alternate members of a committee requires the vote of a majority of the authorized number of directors. Section 7. Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement for expenses, as may be fixed or determined by resolution of the Board. ARTICLE V Officers Section 1. The officers of the corporation shall be a chairman of the board or a president or a general manager, or any combination of the foregoing, a secretary, and a treasurer, who shall also be the chief financial officer of the corporation. The corporation may also have, at the discretion of the Board of Directors, one or more executive vice presidents, senior vice presidents and vice presidents, one or more assistant secretaries, one or more assistant treasurers, and such other officers as may be designated from time to time by the Board of Directors. Any number of offices may be held by the same person. The officers shall be elected by the Board of Directors and shall hold office at the pleasure of such Board. Chairman of the Board Section 2. The chairman of the board, if there be such officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or prescribed by the By-Laws. President Section 3. Subject to such powers and duties, if any, as may be prescribed by these By-Laws or the Board of Directors for the chairman of the board, if there be such officer, the president shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and officers of the corporation. He shall preside at all meetings of the shareholders and, in the absence of the chairman of the board, or if there be none, at all meetings of the Board of Directors. He shall have all the powers and shall perform all of the duties which are ordinarily inherent in the office of the president, and he shall have such further powers and shall perform such further duties as may be prescribed for him by the Board of Directors. General Manager Section 4. In the absence or disability or refusal to act of the president, the general manager shall perform all of the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president. Vice Presidents Section 5. In the absence or disability or refusal to act of the president or the general manager, the executive vice president designated by the president or the general manager or the Board of Directors, or, if there be none, the senior vice president so designated, or if there be none, the vice president so designated shall perform all of the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president. The executive vice presidents, the senior vice presidents and the vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them, respectively, by the Board of Directors or the By-Laws. Secretary Section 6. The secretary shall keep or cause to be kept at the head office of the corporation or such other place as the Board of Directors may order, a book of minutes of all proceedings of the shareholders, the Board of Directors and committees of the Board, with the time and place of holding, whether regular or special, and if special how authorized, the notice thereof given, the names of those present at directors' and committee meetings, and the number of shares present or represented at shareholders' meetings. The secretary shall keep or cause to be kept at the head office a record of shareholders or a duplicate record of shareholders showing the names of the shareholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificates issued for the same and the number and date of cancellation of every certificate surrendered for cancellation. The secretary or an assistant secretary or, if they are absent or unable or refuse to act, any other officer of the corporation, shall give or cause to be given notice of all the meetings of the shareholders, the Board of Directors and committees of the Board required by the By-Laws or by law to be given, and he shall keep the seal of the corporation, if any, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by the By-Laws. Section 7. It shall be the duty of the assistant secretaries to assist the secretary in the performance of his duties and generally to perform such other duties as may be delegated to them by the Board of Directors. Treasurer Section 8. The treasurer shall be the chief financial officer of the corporation and shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of account of the corporation. He shall receive and deposit all moneys and other valuables belonging to the corporation in the name and to the credit of the corporation and shall disburse the same only in such manner as the Board of Directors or the appropriate officers of the corporation may from time to time determine, shall render to the president and the Board of Directors, whenever they request it, an account of all his transactions as treasurer and of the financial condition of the corporation, and shall perform such further duties as the Board of Directors may require. Section 9. It shall be the duty of the assistant treasurers to assist the treasurer in the performance of his duties and generally to perform such other duties as may be delegated to them by the Board of Directors. ARTICLE VI Annual Report Section 1. So long as the corporation shall have fewer than one hundred shareholders of record (determined as provided in Section 605 of the General Corporation Law of the State of California), the requirement of Section 1501(a) of said law that an annual report be sent to the shareholders is expressly waived. ARTICLE VII Amendments Section 1. New By-Laws may be adopted or these By-Laws may be amended or repealed by the affirmative vote or written consent of a majority of the outstanding shares entitled to vote, except as otherwise provided by law or by the Articles of Incorporation or these By-Laws. Section 2. Subject to the right of shareholders as provided in Section 1 of this Article to adopt, amend or repeal By-Laws, and except as otherwise provided by law or by the Articles of incorporation, By-Laws, or other than a by-law or amendment thereof changing the authorized maximum or minimum number of directors, may be adopted, amended or repealed by the Board of Directors. Section 3. Any amendment to these By-Laws shall become effective only when approved by the Superintendent of Banks of the State of California and when a copy thereof, certified by the secretary of the corporation, has been filed with the Superintendent of Banks. Exhibit 6. Consent of the Trustee. - -------------------------------------------------------------------------------- Chemical Trust Company of California hereby consents, in accordance with the provisions of Section 321(b) of the Trust Indenture Act of 1939, that reports of examinations by Federal, State, Territorial and District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. CHEMICAL TRUST COMPANY OF CALIFORNIA BY: s/Paula Oswald -------------------------------- Paula Oswald Assistant Vice President Exhibit 7. Report of Condition of the Trustee. - -------------------------------------------------------------------------------- TRUST COMPANY Consolidated Report of Condition of Chemical Trust Company of California ----------------------------------------- (Legal Title) Located at San Francisco San Francisco CA 94111 --------------------------------------------------------------------- (City) (County) (State) (Zip) as of close of business on March 31, 1995 Bank No. 1476 ------------------------------------ ---------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ASSETS DOLLAR AMOUNT IN THOUSANDS 1. Cash and due from banks 4,679 2. U.S. Treasury securities 6,000 3. Obligations of other U.S. Government agencies and corporations 3,988 4. Obligations of States and political subdivisions 5. Other securities (including $ corporate stock ------------------ (a) Loans (b) Less: Reserve for possible loan losses (c) Loans (Net) 7. Bank Premises, furniture and fixtures and other assets representing bank premises (including $ -0- capital leases) 225 ----------- 8. Real estate owned other than bank premises 9. Investments in subsidiaries not consolidated 10. Other assets (complete schedule on reverse) (including $ 2,244 intangibles) 7,119 -------------- 11. TOTAL ASSETS 22,011 ====== LIABILITIES 12. Liabilities For borrowed money 13. Mortgage indebtedness (including $ capital leases) ---------------------- 14. Other liabilities (complete on schedule on reverse 4,801 15. TOTAL LIABILITIES 4,801 ===== 16. Capital notes and debentures SHAREHOLDERS EQUITY 17. Preferred stock-- (Number shares outstanding )Amount $ --------------------- 18. Common stock-- (Number shares authorized 100 )Amount $ --------------------- (Number shares outstanding 100 Amount $ 10 --------------------- 19. Surplus Amount $ 9,990 20. TOTAL CONTRIBUTED CAPITAL 10,000 21. Retained earnings and other capital reserves 7,210 22. TOTAL SHAREHOLDERS EQUITY 17,210 23. TOTAL LIABILITIES AND CAPITAL ACCOUNTS 22,011 ====== MEMORANDA 1. Assets deposited with State Treasurer to qualify for exercise of fiduciary powers (market value) 605 - -------------------------------------------------------------------------------- The undersigned, Andrew M. Wilcox, Managing Director and --------------------------------------- (Name and Title) Patrick D. Fleck, Vice President & CFO -------------------------------------- (Name and Title) of the above named trust company, each declares, for himself alone and not for the other: I have a personal knowledge of the matters contained in this report (including the reverse side hereof), and I believe that each statement in said report is true. Each of the undersigned, for himself alone and not for the other, certifies under penalty of perjury that the foregoing is true and correct. Executed on 4/13/95 , at San Francisco , California -------------------------- ---------------------------- (Date) (City) s/Andrew M. Wilcox s/Patrick D. Fleck --------------------- ------------------- (Signature) (Signature) SCHEDULE OF OTHER ASSETS Cost of Business Acquisitions 2,244 Accounts Receivable 4,272 Accrued Interest 202 Deferred Taxes 298 Other 103 Total (same as Item 10) 7,119 SCHEDULE OF OTHER LIABILITIES Accrued Income Taxes 2,302 Accrued Expenses & A/P 147 Accrued Inter company Exp/Pay 904 Accrued Pension & Benefits 1,095 Other 353 Total (same as Item 14) 4,801 -----END PRIVACY-ENHANCED MESSAGE-----