0000950131-95-002536.txt : 19950914
0000950131-95-002536.hdr.sgml : 19950914
ACCESSION NUMBER: 0000950131-95-002536
CONFORMED SUBMISSION TYPE: S-3
PUBLIC DOCUMENT COUNT: 6
FILED AS OF DATE: 19950911
SROS: NASD
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: JONES INTERCABLE INC
CENTRAL INDEX KEY: 0000275605
STANDARD INDUSTRIAL CLASSIFICATION: CABLE & OTHER PAY TELEVISION SERVICES [4841]
IRS NUMBER: 840613514
STATE OF INCORPORATION: CO
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-3
SEC ACT: 1933 Act
SEC FILE NUMBER: 033-62537
FILM NUMBER: 95572740
BUSINESS ADDRESS:
STREET 1: PO BOX 3309
STREET 2: 9697 E. MINERAL AVE
CITY: ENGLEWOOD
STATE: CO
ZIP: 80155-3309
BUSINESS PHONE: 3037923111
MAIL ADDRESS:
STREET 2: PO BOX 3309 9697 E MINERAL AVE
CITY: ENGLEWOOD
STATE: CO
ZIP: 8155-3309
S-3
1
FORM S-3
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 11, 1995.
REGISTRATION STATEMENT NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
JONES INTERCABLE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
---------------
84-0613514
COLORADO (I.R.S. EMPLOYER
(STATE OR OTHER JURISDICTION OF IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
9697 EAST MINERAL AVENUE
ENGLEWOOD, COLORADO 80112
(303) 792-3111
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
---------------
GLENN R. JONES
CHIEF EXECUTIVE OFFICER
9697 EAST MINERAL AVENUE
ENGLEWOOD, COLORADO 80112
(303) 792-3111
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
ELIZABETH M. STEELE, ESQ.
VICE PRESIDENT/GENERAL COUNSEL
JONES INTERCABLE, INC.
9697 EAST MINERAL AVENUE
ENGLEWOOD, COLORADO 80112
(303) 792-3111
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED(1) REGISTERED(2)(3) PER UNIT(3)(4) PRICE(3)(4) FEE(5)
--------------------------------------------------------------------------------------------------------
Senior Debt Securities, Senior
Subordinated Debt Securities,
Subordinated Debt Securities and Class A
Common Stock, $.01 par value............. $600,000,000 $206,896.55
--------------------------------------------------------------------------------------------------------
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(1) Such indeterminate principal amount of Senior Debt Securities, Senior
Subordinated Debt Securities and Subordinated Debt Securities as may from
time to time be issued at indeterminate prices and such indeterminate
number of shares of Class A Common Stock as may from time to time be
issued at indeterminate prices. Includes such indeterminate amount of
securities as may be issued in exchange for, or upon conversion of, as the
case may be, the securities registered hereunder. In addition, any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) In no event will the aggregate initial public offering price of the Senior
Debt Securities, Senior Subordinated Debt Securities, Subordinated Debt
Securities and Class A Common Stock registered hereby exceed $600,000,000,
or the equivalent thereof in one or more foreign currencies.
(3) Pursuant to General Instruction II.D. of Form S-3 under the Securities
Act, the Calculation of Registration Fee Table does not specify by each
class of securities to be registered pursuant hereto the amount to be
registered, the proposed maximum offering price per unit or the proposed
maximum aggregate offering price.
(4) The proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with and at the time of the
issuance by the Registrant of the securities registered hereunder.
(5) Estimated solely for the purposes of computing the registration fee
pursuant to Rule 457(o) of the Securities Act.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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JONES INTERCABLE, INC.
CROSS-REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K
REGISTRATION STATEMENT ITEM LOCATION IN PROSPECTUS
--------------------------- ----------------------
1.Forepart of the Registration Facing Page; Cross-Reference Sheet; Outside
Statement and Outside Front Front Cover Page of Prospectus.
Cover Page of Prospectus......
2.Inside Front and Outside Back Inside Front and Outside Back Cover Page of
Cover Pages of Prospectus..... Prospectus; Available Information.
3.Summary Information, Risk The Company; Ratio of Earnings to Fixed
Factors and Ratio of Earnings Charges.
to Fixed Charges..............
4.Use of Proceeds................. Use of Proceeds.
5.Determination of Offering Not Applicable.
Price.........................
6.Dilution........................ Not Applicable.
7.Selling Security Holders........ Not Applicable.
8.Plan of Distribution............ Plan of Distribution.
9.Description of Securities to be Dividend Policy; Price Range of Class A
Registered.................... Common Stock; Description of Capital
Stock; Description of Debt Securities.
10.Interests of Named Experts and Legal Matters; Experts.
Counsel.......................
11.Material Changes................ Recent Developments.
12.Incorporation of Certain Incorporation of Certain Information by
Information by Reference...... Reference.
13.Disclosure of Commission Not Applicable.
Position on Indemnification
for Securities Act
Liabilities...................
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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 WITHOUT THE DELIVERY OF A FINAL PROSPECTUS +
+SUPPLEMENT AND ACCOMPANYING PROSPECTUS. THIS PROSPECTUS SUPPLEMENT AND THE +
+ACCOMPANYING 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 SEPTEMBER 11, 1995
PROSPECTUS
[LOGO OF JONES INTERCABLE, INC. APPEARS HERE]
SENIOR DEBT SECURITIES, SENIOR SUBORDINATED DEBT SECURITIES,
SUBORDINATED DEBT SECURITIES AND CLASS A COMMON STOCK
-----------
Jones Intercable, Inc. (the "Company") may offer from time to time (i)
debentures, notes and/or other unsecured evidences of indebtedness consisting
of senior debt securities ("Senior Debt Securities"), senior subordinated debt
securities ("Senior Subordinated Debt Securities") and subordinated debt
securities ("Subordinated Debt Securities") in one or more series
(collectively, the "Debt Securities") or (ii) shares of its Class A Common
Stock, par value $.01 per share (the "Class A Common Stock"), or any
combination of the foregoing, having an aggregate initial public offering price
not to exceed U.S. $600,000,000 or the equivalent thereof in one or more
foreign currencies at prices and on terms to be determined at or prior to the
time of sale. The Debt Securities may be issued as convertible Debt Securities
convertible into shares of the Class A Common Stock or into other securities.
The Debt Securities and the Class A Common Stock are collectively referred to
as the "Securities."
Specific terms of the Securities in respect of which this Prospectus is being
delivered will be set forth in an accompanying prospectus supplement (a
"Prospectus Supplement"), together with the terms of the offering of the
Securities, the initial offering price and the net proceeds to the Company from
the sale thereof. The Prospectus Supplement will set forth, among other
matters, the following with respect to the particular Securities: (i) in the
case of Debt Securities, the specific designation, aggregate principal amount,
ranking as senior debt, senior subordinated debt or subordinated debt,
authorized denominations, maturity, rate or method of calculation of interest
and dates for payment thereof, any conversion, redemption, prepayment or
sinking fund provisions, and the currency, currencies or currency units in
which principal, premium, if any, or interest, if any, is payable and (ii) in
the case of the Class A Common Stock, the number of shares and the terms of the
offering and sale thereof. 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 Class A Common Stock is traded in the over-the-counter market
and is authorized for quotation on the National Market System operated by the
National Association of Securities Dealers, Inc. under the symbol JOINA. Any
Class A Common Stock offered will be listed, subject to notice of issuance, on
such exchange. See "Price Range of Class A Common Stock."
The Company may sell Securities directly to purchasers or through agents or
dealers designated from time to time by the Company or to or through
underwriters. If any agents, dealers or underwriters are involved in the sales
of Securities in respect of which this Prospectus is being delivered, the names
of such agents, dealers or underwriters and any applicable commissions or
discounts will be set forth in the accompanying Prospectus Supplement. The net
proceeds to the Company from the sale of the Securities will be set forth in
the Prospectus Supplement.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAVE 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.
-----------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is September , 1995.
NO DEALER, SALESPERSON OR ANY OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR IN ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY AGENT, DEALER
OR UNDERWRITER. THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OTHER THAN THOSE SPECIFICALLY OFFERED HEREBY OR ANY SECURITIES IN
ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN
SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (herein, together with all
amendments and exhibits, referred to as the "Registration Statement") relating
to the Securities under the Securities Act of 1933, as amended (the "Securities
Act"). This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information pertaining
to the Securities and the Company, reference is made to the Registration
Statement.
The Company is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Commission. Such reports, proxy statements and other information can
be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at
the following Regional Offices of the Commission: 7 World Trade Center, Suite
1300, New York, New York 10048, and Northwest Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of any such material may be
obtained at prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
The Company will furnish to holders of the Securities annual reports
containing audited financial statements accompanied by a report thereon by the
Company's independent certified public accountants.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed by the Company with the
Commission (File No. 1-9953) pursuant to the requirements of the Exchange Act,
are hereby incorporated by reference: (i) the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1995, as amended, (ii) the Company's
Current Report on Form 8-K dated September 8, 1995, and (iii) the Company's
Proxy Statement dated May 19, 1995.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities shall
be deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date any such document is filed. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein
or in any Prospectus Supplement shall be deemed to be modified or superseded
for purposes of the Registration Statement and this Prospectus or any
Prospectus Supplement to the extent that a statement contained herein or
therein (or in any other subsequently filed document which also is, or is
deemed to be, incorporated by reference herein or therein) modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement and this Prospectus or any Prospectus Supplement.
2
The Company will provide without charge to each person to whom a Prospectus
is delivered, upon written or oral request of such persons, a copy of any or
all of the documents that are incorporated by reference herein, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such document). Requests should be directed to Elizabeth M.
Steele, Vice President/General Counsel and Secretary, Jones Intercable, Inc.,
9697 East Mineral Avenue, P.O. Box 3309, Englewood, Colorado 80133-3309, (303)
792-3111.
THE COMPANY
The Company is a Colorado corporation organized in 1970. The Company is
primarily engaged in the cable television business. The Company also holds
equity interests in a number of programming and other cable-related
subsidiaries. At May 31, 1995, the Company had a total of approximately 3,480
employees. The executive offices of the Company are located at 9697 East
Mineral Avenue, Englewood, Colorado 80112, and its telephone number is (303)
792-3111.
The Company develops and operates cable television systems for itself and for
its managed limited partnerships. Based on the number of basic subscribers
served by the Company's owned and managed cable television systems, the Company
is one of the largest cable television operators in the United States. As of
May 31, 1995, the Company owned or managed 55 cable television systems serving
a total of approximately 1,350,000 basic subscribers in 23 states. Glenn R.
Jones, the founder, Chairman, Chief Executive Officer and major shareholder of
the Company, is one of the pioneers in the cable television industry, and he
has been involved in the ownership and operation of cable television systems
since 1970.
The Company has grown by acquiring and developing cable television systems
for both itself and its managed partnerships, primarily in suburban areas with
attractive demographic characteristics. One of the primary factors utilized by
the Company in deciding to acquire a particular cable television system is the
potential of the system for operating cash flow growth and value appreciation.
Key elements of the Company's operating strategy include increasing basic
penetration levels and revenue per subscriber through targeted marketing,
superior customer service and maintenance of high technical standards. The
Company has deployed fiber optic cable wherever practical in its current
rebuild and upgrade projects, which improves system reliability and picture
quality, increases channel capacity and provides the potential for new business
opportunities. The Company has focused on pay-per-view and advertising as
revenue growth opportunities, and expects to continue to do so in the future.
Within the past several years, and at an increasing pace recently, the cable
television industry has seen much change. With recent announcements of
alliances between cable television companies and telephone, computer and
software companies, the Company believes that the nature of the cable
television business is changing from the traditional coaxial network delivering
video entertainment to a more sophisticated, digital platform environment where
cable systems could be capable of delivering traditional programming as well as
other services, including data, telephone and expanded educational and
entertainment services on an interactive basis. As this convergence of various
technologies progresses, cable television companies will have to reevaluate
their system architecture, upgrade their cable plants to take advantage of new
opportunities and consider clustering their systems in geographic areas where
they can achieve economies of scale and reasonable returns on the investments
made. The Company is, on an on-going basis, evaluating its position in this
changing marketplace and intends, where possible, to pursue these opportunities
as they evolve. The ability of the Company to do so, however, will be dependent
in large part on the availability of debt and equity financing.
The Company intends to grow by implementing a balanced strategy directed at
acquiring cable television systems from Company-managed limited partnerships
and from third parties. As part of this process, certain systems owned by the
Company and its managed partnerships may be sold to third parties and/or such
systems may be exchanged for systems owned by other cable system operators. It
is the Company's plan to
3
cluster its cable television properties, to the extent feasible, in geographic
areas where it will have an adequate number of subscribers to justify the
capital expenditures required to upgrade its plant and the possible offering of
telephony and other telecommunications services. The Company also intends to
maintain and enhance the value of its current cable television systems through
capital expenditures. Such expenditures will include, among others, cable
television plant extensions and the upgrade and rebuild of certain systems.
Acquisitions and capital expenditures are subject to the availability of cash
generated from operations and debt and equity financing. The capital resources
to accomplish these strategies are expected to be provided, in part, by the net
proceeds to the Company from the sale of the Securities.
Glenn R. Jones, the Chairman of the Board of Directors and Chief Executive
Officer of the Company, is deemed to be the beneficial owner of all of the
shares of Class A Common Stock and Common Stock of the Company owned by him and
by Jones International, Ltd., a private company owned 100 percent by Mr. Jones,
and certain of their affiliates. Mr. Jones' direct and indirect stock ownership
in the Company enables him to control the election of a majority of the
Company's Board of Directors and gives him voting power over approximately 41
percent of votes to be cast by all shareholders of the Company on matters not
requiring a class vote. See "Description of Capital Stock."
In December 1994, Bell Canada International Inc. ("BCI"), which has an
approximate 30 percent economic interest in the Company through its indirect
ownership of approximately 38 percent of the Class A Common Stock of the
Company, acquired from Mr. Jones and Jones International, Ltd. and certain of
their affiliates options to purchase all of the shares of the Company's Common
Stock owned by Mr. Jones, Jones International, Ltd. and certain of their
affiliates. These options, if and when exercised, would enable BCI to control
the election of a majority of the Company's Board of Directors. BCI, through
its parent company, BCE Inc., and their affiliates, is engaged in many areas of
the telecommunications business. BCE Inc. is the largest telecommunications
company in Canada and it also is the parent company of Bell Canada, the largest
provider of telecommunications services in Canada. BCI is also affiliated with
Bell Northern Research, Canada's largest research and development organization,
and with Northern Telecom, a leading global manufacturer of telecommunications
equipment. BCI and the Company also are principal shareholders of Bell
Cablemedia plc, which is one of the largest cable communications companies
providing multi-channel television and telephony services in the United
Kingdom.
RECENT DEVELOPMENTS
The Company has announced several acquisitions of cable television systems
from its managed partnerships and from unaffiliated parties and the exchange of
cable television systems owned or to be acquired by the Company for cable
television systems currently owned by unaffiliated parties. These acquisitions
and exchanges are scheduled to close during the autumn of 1995 or in early
1996. Funding for these transactions is expected to come from cash on hand and
from borrowings under the Company's credit facility.
The Company has agreed to purchase from a managed partnership the cable
television system serving areas in and around Augusta, Georgia (the "Augusta
System") for a purchase price of $142,618,000, subject to normal closing
adjustments. The Augusta System serves approximately 66,950 basic subscribers
and passes approximately 102,000 homes. The Augusta System is contiguous with
the cable television system already owned by the Company serving areas in and
around North Augusta, South Carolina (the "North Augusta System"). Together,
the Augusta System and the North Augusta System will, upon closing of the
Company's acquisition of the Augusta System, form an operating cluster that
will serve approximately 81,700 basic subscribers and pass approximately
125,700 homes.
The Company has agreed to purchase from an unaffiliated party the cable
television systems serving areas in and around Dale City, Lake Ridge,
Woodbridge, Fort Belvoir, Triangle, Dumfries, Quatico, Accoquan and portions of
Prince William County, all in the State of Virginia (the "Dale City Systems")
for a purchase
4
price of $123,000,000, subject to normal closing adjustments. These systems
serve approximately 50,000 basic subscribers and pass approximately 64,100
homes. The Company also has agreed to purchase from unaffiliated companies the
cable television systems serving areas in and around Manassas, Manassas Park,
Haymarket and portions of Prince William County, all in the State of Virginia
(the "Manassas Systems") for a purchase price of $71,100,000, subject to normal
closing adjustments. These systems serve approximately 25,450 basic subscribers
and pass approximately 39,000 homes.
The Company has also agreed to purchase three cable television systems from
various of its managed partnerships and to exchange those systems for cable
television systems currently owned by an unaffiliated party. The Company has
agreed to purchase from a managed partnership the cable television system
serving areas in and around Carmel, Indiana (the "Carmel System") for a
purchase price of $44,235,333, subject to normal closing adjustments. The
Carmel System serves approximately 18,500 basic subscribers and passes
approximately 24,400 homes. The Company has agreed to purchase from a managed
partnership the cable television system serving areas in and around Orangeburg,
South Carolina (the "Orangeburg System") for a purchase price of $18,347,667,
subject to normal closing adjustments. The Orangeburg System serves
approximately 12,000 basic subscribers and passes approximately 16,530 homes.
The Company has agreed to purchase from a venture comprised of three managed
partnerships the cable television system serving areas in and around Tampa,
Florida (the "Tampa System") for a purchase price of $110,395,667, subject to
normal closing adjustments. The Tampa System serves approximately 62,500 basic
subscribers and passes approximately 125,000 homes. The Company has also
entered into an asset exchange agreement with an unaffiliated cable television
system operator pursuant to which the Company will convey to that operator
substantially all of the assets of the Carmel System, the Orangeburg System and
the Tampa System and cash in the amount of $3,500,000, subject to normal
closing adjustments. In return, the Company will receive substantially all of
the assets of cable television systems serving Andrews Air Force Base, Capitol
Heights, Cheltenham, District Heights, Fairmont Heights, Forest Heights,
Morningside, Prince George's County, Seat Pleasant and Upper Marlboro, Maryland
(the "Prince George's County System") and a portion of Fairfax County, Virginia
(the "Reston System"). The Prince George's County System and the Reston System
serve approximately 85,000 subscribers.
The Prince George's County System is contiguous to the Company's Alexandria,
Virginia, Calvert County, Maryland and Charles County, Maryland cable
television systems. The Reston System is approximately 12 miles from the
Company's Alexandria, Virginia system. Acquisition of the Prince George's
County System and the Reston System together with the acquisitions of the Dale
City Systems and the Manassas Systems discussed above, will, together with
cable television systems already owned or managed by the Company in the area,
bring the total number of basic subscribers owned or managed by the Company in
the Baltimore/Washington, D.C. metropolitan area to approximately 300,000.
The Company has also agreed to purchase four cable television systems from
various of its managed partnerships and to exchange those systems together with
two systems already owned by the Company for cable television systems currently
owned by an unaffiliated party. The Company has agreed to purchase from a
venture comprised of four managed partnerships the cable television system
serving the City of Manitowoc, Wisconsin (the "Manitowoc System") for a
purchase price of $15,735,667, subject to normal closing adjustments. The
Manitowoc System serves approximately 10,500 basic subscribers and passes
approximately 15,400 homes. The Company has agreed to purchase from a managed
partnership the cable television systems serving areas in and around Lodi, Ohio
(the "Lodi System") for a purchase price of $25,706,000, subject to normal
closing adjustments. The Lodi System serves approximately 14,700 basic
subscribers and passes approximately 20,600 homes. The Company has agreed to
purchase from a managed partnership the cable television system serving areas
in and around Ripon, Wisconsin (the "Ripon System") for a purchase price of
$3,712,667, subject to normal closing adjustments. The Ripon System serves
approximately 2,450 basic subscribers and passes approximately 2,500 homes. The
Company has agreed to purchase from a managed partnership the cable television
system serving areas in and around Lake Geneva, Wisconsin (the "Lake Geneva
System") for a purchase price of $6,345,667, subject to normal closing
adjustments. The Lake Geneva
5
System serves approximately 3,400 basic subscribers and passes approximately
5,400 homes. The Company has also entered into an asset exchange agreement with
an unaffiliated cable television system operator pursuant to which the Company
will convey to that operator substantially all of the assets of the Manitowoc
System, the Lodi System, the Ripon System, the Lake Geneva System and the cable
television systems serving areas in and around Kenosha, Wisconsin (the "Kenosha
System") and Hilo, Hawaii (the "Hilo System") currently owned by the Company.
The Hilo System serves approximately 17,000 basic subscribers and passes
approximately 23,000 homes. The Kenosha System serves approximately 27,000
basic subscribers and passes approximately 39,000 homes. In return, the Company
will receive substantially all of the assets of the cable television system
serving areas in and around Savannah, Georgia (the "Savannah System") and
$4,000,000 in cash, subject to normal closing adjustments. The Savannah System
serves approximately 63,000 subscribers and passes approximately 100,000 homes.
RATIO OF EARNINGS TO FIXED CHARGES
YEAR ENDED MAY 31,
---------------------------------------------
1991 1992 1993 1994 1995
-------- ------- -------- -------- -------
DOLLARS IN THOUSANDS, EXCEPT RATIOS
Pre-tax Income (Loss)........... $(45,030) $23,383 $(40,266) $(25,277) $(4,001)
Adjustments:
Interest expense.............. 44,699 38,129 43,573 36,189 39,939
Interest charged to cable
television systems held
for resale.................... (4,598) -- -- -- --
Equity in losses of limited
partnerships................... 11,233 8,158 2,900 4,624 2,981
-------- ------- -------- -------- -------
$ 6,304 $69,670 $ 6,207 $ 15,536 $38,919
Interest Expense (net).......... $ 40,101 $38,129 43,573 36,189 39,939
-------- ------- -------- -------- -------
Ratio of Earnings to Fixed
Charges(1)..................... -- 1.83x -- -- --
Coverage deficiency............. $(33,797) -- (37,366) $(20,653) $(1,020)
======== ======= ======== ======== =======
--------
(1) The ratio of earnings to fixed charges has been computed by dividing the
sum of (a) pre-tax income, including equity in losses of limited
partnerships, and (b) interest expense net of interest charged to cable
television systems held for resale, by net interest expense.
USE OF PROCEEDS
Except as otherwise described in the Prospectus Supplement relating to a
specific offering of Securities, the net proceeds from the sale of the
Securities will be added to the general funds of the Company and will be used
for general corporate purposes, which may include acquisitions of cable
television systems from managed partnerships and/or from unaffiliated parties,
refinancings of indebtedness, working capital, capital expenditures, and
repurchases and redemptions of securities.
CONCURRENT OFFERING
The Company has filed a registration statement under the Securities Act for
the offering, from time to time, of 2,844,678 shares of its Class A Common
Stock held by various affiliates of the Company. Although this registration
statement has not yet been declared effective, the Company anticipates that it
will be declared effective concurrently with or shortly before or after the
effectiveness of the Registration Statement filed in respect to the offering
made by this Prospectus and that sales of the Class A Common Stock of the
Company by such affiliates may be made from time to time concurrently with the
offering made by this Prospectus. The Company will receive none of the proceeds
of this concurrent offering. The Company also may file additional registration
statements to offer equity or debt securities during the effectiveness of the
Registration Statement filed in connection with the offering made by this
Prospectus.
6
DIVIDEND POLICY
The Company has never paid a cash dividend with respect to its shares of
Common Stock or Class A Common Stock, and it has no present intention to pay
cash dividends in the foreseeable future. The current policy of the Company's
Board of Directors is to retain earnings to provide funds for the operation and
expansion of its business. Future dividends, if any, will be determined by the
Board of Directors in light of the circumstances then existing, including the
Company's earnings and financial requirements and general business conditions.
If cash dividends are paid in the future, the holders of the Class A Common
Stock will be paid $.005 per share per quarter in addition to the amount
payable per share of Common Stock. Such additional dividends on the Class A
Common Stock are not cumulative but would be adjusted appropriately if cash
dividends are declared with respect to a period other than a quarterly period.
The Company's credit agreements restrict the right of the Company to declare
and pay cash dividends without the consent of the lenders.
PRICE RANGE OF CLASS A COMMON STOCK
The Company's Class A Common Stock is traded in the over-the-counter market
and is authorized for quotation on the National Market System of the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") under
the symbol JOINA. Any shares of Class A Common Stock offered by this Prospectus
will be listed, subject to notice of issuance, on such exchange. The following
table sets forth for each quarterly period of fiscal 1995 and 1994 the high and
low reported closing prices of the Company's Class A Common Stock as reported
by NASDAQ.
PERIOD HIGH LOW
------ ------ -------
1995 First Quarter........................................ 15 3/8 12
Second Quarter....................................... 15 3/8 13 5/16
Third Quarter........................................ 16 1/4 11 3/8
Fourth Quarter....................................... 17 1/2 13 1/4
PERIOD HIGH LOW
------ ------ -------
1995 First Quarter........................................ 15 1/4 11 1/4
Second Quarter....................................... 19 12 1/2
Third Quarter........................................ 20 1/4 15
Fourth Quarter....................................... 15 5/8 11
If shares of the Company's Class A Common Stock are being offered, a recent
last sale price of the Class A Common Stock will be set forth on the cover page
of the Prospectus Supplement.
The Company's Common Stock also is traded in the over-the-counter market and
is quoted on the National Market System of NASDAQ under the symbol JOIN.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 5,550,000 shares of Common
Stock, $.01 par value per share, of which 5,113,021 shares were outstanding at
August 1, 1995, and 60,000,000 shares of Class A Common Stock, $.01 par value
per share, of which 26,158,305 shares were outstanding at such date.
The outstanding shares of both classes of common stock are not subject to
redemption or to any liability for further calls or assessments, and the
holders of such shares do not have pre-emptive or other rights to subscribe for
additional shares of the Company. All issued and outstanding shares of Common
Stock and Class A Common Stock are validly issued, fully paid and
nonassessable. Dividends in cash, property or shares of the Company may be paid
upon the Common Stock and Class A Common Stock, if declared by the Company's
Board of Directors out of any funds legally available therefor, and holders of
Class A Common Stock have a cash dividend preference over holders of Common
Stock, as described below. Holders of
7
Common Stock and Class A Common Stock are entitled to share ratably in assets
available for distribution upon any liquidation of the Company, subject to the
prior rights of creditors, although holders of Class A Common Stock have a
preference on liquidation over holders of Common Stock, as described below.
The Class A Common Stock has certain preferential rights with respect to cash
dividends and upon liquidation of the Company. In the event that cash dividends
are paid, the holders of the Class A Common Stock will be paid $.005 per share
per quarter in addition to the amount payable per share of Common Stock. In the
case of liquidation, holders of Class A Common Stock will be entitled to a
preference of $1 per share. After such amount is paid, holders of the Common
Stock will then be entitled to receive $1 per share for each share of Common
Stock outstanding. Any remaining amount will be distributed to the holders of
Class A Common Stock and Common Stock on a pro rata basis.
The Class A Common Stock has voting rights that are generally 1/10th of those
held by the Common Stock. In the election of directors, the holders of Class A
Common Stock, voting as a separate class, are entitled to elect that number of
directors that constitute 25 percent of the total membership of the Board of
Directors. Holders of the Common Stock, also voting as a separate class, are
entitled to elect the remaining directors.
As of August 1, 1995, the outstanding shares of Class A Common Stock
constituted approximately 84 percent of the total outstanding shares of capital
stock of the Company but cast only 34 percent of the votes to be cast in
matters to be acted upon by shareholders of the Company not requiring a class
vote, and the outstanding shares of the Company's Common Stock constituted
approximately 16 percent of the outstanding capital stock of the Company, but
cast approximately 66 percent of the votes to be cast by shareholders of the
Company in connection with such matters.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement
and any variations from such general terms and provisions applicable to the
Debt Securities so offered will be described in the Prospectus Supplement
relating to such Debt Securities.
The Debt Securities will be general unsecured obligations of the Company. The
Senior Debt Securities will be senior to all subordinated indebtedness of the
Company, including any Senior Subordinated Debt Securities and Subordinated
Debt Securities and pari passu with other senior unsecured indebtedness of the
Company. The Senior Subordinated Debt Securities will be subordinate in right
of payment to any Senior Debt Securities and to certain other debt obligations
of the Company that may be outstanding from time to time, pari passu with
certain other senior subordinated indebtedness of the Company that may be
outstanding from time to time and senior to certain subordinated indebtedness
of the Company that may be outstanding from time to time, including any
Subordinated Debt Securities. The Subordinated Debt Securities will be
subordinate in right of payment to any Senior Debt Securities and Senior
Subordinated Debt Securities and to certain other debt obligations of the
Company that may be outstanding from time to time and pari passu with certain
other subordinated indebtedness of the Company that may be outstanding from
time to time.
The particular terms of each series of Debt Securities offered by a
particular Prospectus Supplement will be described therein. Senior Debt
Securities, Senior Subordinated Debt Securities and Subordinated Debt
Securities will each be issued under a separate indenture (individually an
"Indenture" and collectively the "Indentures") to be entered into prior to the
issuance of such Debt Securities. The Indentures will be substantially
identical except for provisions relating to subordination. There may be a
separate trustee (individually a "Trustee" and collectively the "Trustees")
under each Indenture. It is anticipated that the Senior Debt Securities will be
issued under an Indenture to be executed by the Company and U.S. Trust Company
of California, N.A., as Trustee (the "Senior Indenture"). It is anticipated
that the Senior
8
Subordinated Debt Securities will be issued under an Indenture to be executed
by the Company and First Trust National Association, as Trustee (the "Senior
Subordinated Indenture"). It is anticipated that the Subordinated Debt
Securities will be issued under an Indenture to be executed by the Company and
Bank of America National Trust and Savings Association, as Trustee (the
"Subordinated Indenture"). Specific information regarding a Trustee under an
Indenture will be included in any Prospectus Supplement relating to the Debt
Securities issued thereunder.
The following discussion includes a summary description of all material terms
of the Indentures, other than terms that 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, 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 or articles
or defined terms of the Indentures are referred to herein or in a Prospectus
Supplement, such sections or articles or defined terms are incorporated herein
or therein by reference.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered by any
Prospectus Supplement or Prospectus Supplements will be described in such
Prospectus Supplement or Prospectus Supplements relating to such series.
GENERAL
The Indentures will not limit the aggregate principal amount of debentures,
notes or other evidences of indebtedness which may be issued thereunder and
Debt Securities may be issued thereunder in one or more series, in such form or
forms, with such terms and up to the aggregate principal amount authorized from
time to time by the Company.
Reference is made to the Prospectus Supplement for the following terms of the
Debt Securities: (1) the designation (including whether they are Senior Debt
Securities, Senior Subordinated Debt Securities or Subordinated Debt
Securities, whether such Debt Securities are convertible and, if convertible,
into what securities the Debt Securities are convertible), aggregate principal
amount and authorized denominations of the Debt Securities; (2) the percentage
of their principal amount at which such Debt Securities will be issued; (3) the
date or dates on which the Debt Securities will mature or the method of
determination thereof; (4) the rate or rates (which may be fixed or variable)
at which the Debt Securities will bear interest, if any, or the method by which
such rate or rates shall be determined, any reset features of the rates and the
date or dates from which such interest will accrue or the method by which such
date or dates shall be determined; (5) the dates on which any such interest
will be payable and the regular record dates for such interest payment dates;
(6) any mandatory or optional sinking fund or purchase fund or analogous
provisions; (7) if applicable, the date after which and the price or prices at
which the Debt Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed at the option of the Company or of the holder thereof
and the other detailed terms and provisions of such optional or mandatory
redemption; (8) if applicable, the terms and conditions upon which the Debt
Securities may be convertible or exchangeable into or exercisable for other
securities (including shares of a class of capital stock of the Company or any
other issuer), including the initial conversion rate, the conversion period and
any other provision in addition to or in lieu of those described herein; (9)
whether such Debt Securities shall be subject to defeasance and, if so, the
terms thereof; (10) any Events of Default provided with respect to the Debt
Securities that are in addition to or different from those described herein;
and (11) any other terms of the Offered Debt Securities.
Unless otherwise indicated in the Prospectus Supplement relating thereto, the
principal of (and premium, if any) and interest on the Debt Securities will be
payable, and the Debt Securities will be exchangeable and transfers thereof
will be registrable, at the Corporate Trust Office of the Trustee, provided
that at the option of the Company, payment of any interest may be made by check
mailed to the address of the person entitled thereto as it appears in the
Security Register.
Unless otherwise indicated in the Prospectus Supplement relating thereto, the
Debt Securities will be issued only in fully registered form, without coupons,
in denominations of $1,000 or any integral multiple
9
thereof. No service charge will be made for any registration of transfer or
exchange of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Debt Securities may be issued under the Indenture as original issue discount
securities to be offered and sold at a discount from the principal amount
thereof. Special federal income tax, accounting and other considerations
applicable to any such original issue discount securities will be described in
the Prospectus Supplement relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating to a
particular series of Debt Securities, the covenants applicable to the Debt
Securities would not necessarily afford holders protection in the event of a
highly leveraged or other transaction involving the Company or in the event of
a material adverse change in the Company's financial condition or results of
operation. Unless otherwise indicated in the Prospectus Supplement relating to
a particular series of Debt Securities, the Debt Securities do not contain any
other provisions that are designed to afford protection in the event of a
highly leveraged transaction involving the Company.
SUBORDINATION
The payment of the principal of (and premium, if any) and interest on the
Subordinated Debt Securities is expressly subordinated, to the extent and in
the manner set forth in any Prospectus Supplement and the Subordinated
Indenture, in right of payment to the prior payment in full of all present and
future Senior Indebtedness (including any Senior Debt Securities and Senior
Subordinated Debt Securities then outstanding) of the Company. Senior
Indebtedness is defined in the Subordinated Indenture as: (1) any indebtedness
of the Company (i) for borrowed money or (ii) evidenced by a note, debenture or
similar instrument (including obligations incurred under leases which are or
may be capitalized under generally accepted accounting principles and purchase
money obligations) given in connection with the acquisition of any property or
assets, including purchase of cable television systems and securities, (2) any
indebtedness of others described in the preceding clause (1) for which the
Company is responsible or liable as guarantor or otherwise, (3) any
indebtedness now outstanding or hereafter incurred by the Company in connection
with an acquisition by the Company or a subsidiary of the stock or
substantially all of the assets of another person or a merger or consolidation
to which the Company or a subsidiary is a party, for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise, and (4)
all deferrals, renewals, extensions and refundings of any such indebtedness or
obligations, other than (a) indebtedness issued pursuant to the Company's
outstanding 7.5 percent convertible subordinated debentures due 2007, (b)
indebtedness as to which, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such
indebtedness is subordinate in right of payment to all other indebtedness of
the Company or is not superior in right of payment to the Subordinated Debt
Securities or to other indebtedness which is pari passu with or subordinate to
the Subordinated Debt Securities, and (c) indebtedness of the Company to a
subsidiary for money borrowed or advanced. It is anticipated that the
Subordinated Debt Securities will be senior to the 7.5 percent Convertible
Subordinated Debentures due 2007. On September 7, 1995, the Company announced
its intention to redeem all of the remaining outstanding 7.5 percent
Convertible Subordinated Debentures due 2007 on October 12, 1995 at a price
equal to 101.5 percent of the principal amount thereof plus interest accrued
and unpaid thereon to October 12, 1995. The Company also has outstanding the
11.5 percent Senior Subordinated Debentures due 2004, the 10.5 percent Senior
Subordinated Debentures due 2008 and the 9 5/8 percent Senior Notes due 2002.
The Company is party to a $300,000,000 secured revolving credit facility,
borrowings under which will constitute Senior Indebtedness. At May 31, 1995,
approximately $218,568,000 of Senior Indebtedness was outstanding. At such
date, no amounts were outstanding under the Company's secured revolving credit
facility.
The payment of the principal of (and premium, if any) and interest on the
Senior Subordinated Debt Securities is expressly subordinated, to the extent
and in the manner set forth in any Prospectus Supplement and the Senior
Subordinated Indenture, in right of payment to the prior payment in full of all
present and future Senior Indebtedness (including any Senior Debt Securities
then outstanding) of the Company. Senior
10
Indebtedness is defined in the Senior Subordinated Indenture as set forth in
clauses (1), (2), (3) and (4) above from the Subordinated Indenture; provided,
however, that it excludes only indebtedness that is subordinate in right of
payment to any other indebtedness of the Company and indebtedness of the
Company to a subsidiary for money borrowed or advanced. The Senior Subordinated
Debt Securities will rank senior to the Company's outstanding issues of
subordinated indebtedness.
The extent to which the Company may incur Senior Indebtedness and limitations
thereon, if any, are set forth in the accompanying Prospectus Supplement. If
Debt Securities are being offered, the aggregate principal amount of Senior
Indebtedness outstanding as of a recent date will be set forth in the
accompanying Prospectus Supplement.
Upon any payment or distribution of assets of the Company to creditors upon
any dissolution, winding up, total or partial liquidation or reorganization,
whether voluntary or involuntary, or in bankruptcy, insolvency or receivership
or upon an assignment for the benefit of creditors or any other marshalling of
the assets and liabilities of the Company or otherwise, all principal of,
premium, if any, and interest due on all Senior Indebtedness (including any
outstanding Senior Debt Securities) must be paid in full before the holders of
the Senior Subordinated Debt Securities or the Subordinated Debt Securities are
entitled to receive or retain any payment thereon, and principal of, premium,
if any, and interest on the Senior Subordinated Securities must be paid in full
before the holders of the Subordinated Debt Securities are entitled to receive
or retain any payment thereon. Subject to the payment in full of all Senior
Indebtedness, the holders of the Senior Subordinated Debt Securities or the
Subordinated Debt Securities will be subrogated to the rights of the holders of
Senior Indebtedness (as respectively defined in the Senior Subordinated
Indenture and the Subordinated Indenture) to receive payments or distributions
of assets of the Company applicable to Senior Indebtedness until the Senior
Subordinated Debt Securities or Subordinated Debt Securities are paid in full.
CONVERSION RIGHTS
The terms, if any, on which Debt Securities may be exchanged for or converted
(mandatorily or otherwise) into shares of Class A Common Stock of the Company
or into other securities of the Company or into shares of another corporation
will be set forth in the Prospectus Supplement relating thereto. See
"Description of Capital Stock." The Company currently holds, either directly or
through certain of its wholly owned subsidiaries, 6,225,796 American Depositary
Shares ("ADSs") representing 31,128,980 Ordinary Shares of Bell Cablemedia plc,
a cable/telephony company incorporated under the laws of England and Wales. If
Debt Securities convertible into the Company's ADSs are offered, information
about Bell Cablemedia plc and the ADSs will be set forth in the accompanying
Prospectus Supplement.
EVENTS OF DEFAULT, NOTICE AND WAIVER
An Event of Default will be defined in the Indentures with respect to Debt
Securities of any series issued thereunder as a default in payment of principal
or premium, if any, at maturity or upon redemption; a default in payment of
interest subject to applicable grace periods; a failure by the Company for 60
days after notice to perform any other of the covenants or agreements in the
Indentures; certain events of bankruptcy, insolvency or reorganization of the
Company or any significant subsidiary; or any other event of default provided
with respect to Debt Securities of that series.
Each Indenture will provide that, if an Event of Default shall have occurred
and be continuing, either the Trustee or the holders of 25% in principal amount
of the Debt Securities of such series then outstanding may declare the
principal of all the Debt Securities of such series to be due and payable
immediately, but upon certain conditions such declaration may be annulled and
past defaults may be waived by the holders of a majority in principal amount of
the Debt Securities of such series then outstanding. The holders of a majority
in principal amount of the Debt Securities of such series then outstanding may
also waive any default (except a default in payment of principal or interest on
the Debt Securities of such series) prior to such declaration.
Each Indenture will require the Company to file a certificate specifying a
default immediately upon becoming aware of such default, and to file annually
with the Trustee a certificate either stating the absence
11
of any default or specifying any default that exists. Each Indenture will
provide that the Trustee shall, within 90 days after the occurrence of a
default, give the holders of Debt Securities of any series notice of all
uncured and unwaived defaults known to it; provided that, except in the case of
default in the payment of principal or interest on any of the Debt Securities
of such series or the making of any sinking fund payment, the Trustee will be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interest of such holders. The
term "default" for the purpose of this provision means the occurrence of any of
the Events of Default specified above, excluding any grace periods and
irrespective of the giving of notice.
Each Indenture will contain provisions entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care,
to be indemnified by the holders of Debt Securities of any series before
proceeding to exercise any right or power under the Indenture at the request of
such holders. Each Indenture provides that the holders of a majority in
principal amount of the Debt Securities of such series then outstanding may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, provided that the Trustee may decline to act if such direction is
contrary to law or if the Trustee determines in good faith that the proceeding
so directed would be illegal, would involve it in personal liability or would
be unduly prejudicial to other holders of Debt Securities of such series. Each
Indenture also will restrict the right of holders of Debt Securities of such
series to initiate any suit or proceeding by requiring prior written request to
the Trustee of holders of at least 25% in principal amount of the Debt
Securities of such series.
Reference is made to the Prospectus Supplement relating to any series of Debt
Securities that are original issue discount securities for the particular
provision relating to acceleration of the maturity of a portion of the
principal amount of such original issue discount securities upon the occurrence
of an Event of Default and the continuation thereof.
MERGER OR SALES OF ASSETS
Each Indenture will provide that the Company may merge with another
corporation if the Company is the surviving corporation, or may consolidate
with or merge into another corporation or sell or lease all or substantially
all of its assets to another corporation if (i) immediately after such
transaction no default or event of default under the Indenture shall have
occurred or be continuing, (ii) the resulting, surviving or transferee
corporation is organized and existing under the laws of a state of the United
States or the District of Columbia and (iii) such corporation agrees to pay
promptly when due the principal of and interest on the Debt Securities and
agrees to assume, perform and observe all the covenants and conditions of the
Indenture.
MODIFICATION OF THE INDENTURES
The Company and the Trustee, with the consent of the holders of not less than
a majority of the aggregate principal amount of the Debt Securities of any
series affected at the time outstanding, may execute supplemental indentures
adding, changing or eliminating stated provisions of the Indentures or of any
supplemental indenture or modifying in any manner the rights of the holders of
the Debt Securities; however, no such supplemental indenture may (i) extend the
stated maturity of any Debt Securities, reduce the rate or extend the time of
payment of interest thereon, reduce the principal amount thereof, or impair the
right to institute suit for the enforcement of any such payment on or after the
stated maturity thereof (or, in the case of redemption, on or after the
redemption date) without the consent of each holder of the Debt Securities of
such series so affected, (ii) reduce the aforesaid percentage of any of the
Debt Securities, the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all the Debt
Securities of such series then outstanding, (iii) modify any of the provisions
concerning modification of the Indentures except to increase any such
percentage or to provide that certain other provisions of the Indentures cannot
be modified or waived without the consent of each holder of the Debt Securities
of such series so affected, or (iv) change the terms on which any Debt
Securities are convertible or exchangeable into or exercisable for shares of a
class of capital stock of the Company or any other issuer.
12
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
Each Indenture may be discharged upon payment of the principal of (and
premium, if any) and interest, if any, on all the Debt Securities and all other
sums due thereunder. In addition, the Indentures will provide that if, within
one year of the date the Debt Securities of any series becomes due and payable,
or are to be called for redemption, the Company, if so permitted with respect
to Debt Securities of a particular series, deposits with the Trustee, in trust
for the benefit of the holders thereof, funds sufficient to pay all sums due
for the principal of (and premium, if any) and interest, if any, on the Debt
Securities of such series, as they shall become due or redeemable and, if
certain other conditions are met, the Trustee shall cancel and satisfy such
Indenture with respect to such series to the extent provided therein. The
Prospectus Supplement describing the Debt Securities of such series will more
fully describe the provisions, if any, relating to such cancellation and
satisfaction of the Indenture with respect to such series.
PLAN OF DISTRIBUTION
The Company may sell the Securities on a negotiated or competitive bid basis
to or through underwriters or dealers, and also may sell the Securities
directly to other purchasers or through agents. The Prospectus Supplement will
describe the method of distribution of the Securities.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
If underwriters are used in the offering of the Securities, the names of the
managing underwriter or underwriters and any other underwriters, and the terms
of the transaction, including compensation of the underwriters and dealers, if
any, will be set forth in the Prospectus Supplement relating to such offering.
Only underwriters named in a Prospectus Supplement will be deemed to be
underwriters in connection with the Securities described therein. Firms not so
named will have no direct or indirect participation in the underwriting of such
Securities, although such a firm may participate in the distribution of such
Securities under circumstances entitling it to a dealer's commission. It is
anticipated that any underwriting agreement pertaining to any Securities will
(1) entitle the underwriters to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities Act, or to
contribution for payment which the underwriters may be required to make in
respect thereof, (2) provide that the obligations of the underwriters will be
subject to certain conditions precedent, and (3) provide that the underwriters
generally will be obligated to purchase all the Securities if any are
purchased.
The Company also may sell the Securities to a dealer as principal. In such
event, the dealer may then resell such Securities to the public at varying
prices to be determined by such dealer at the time of resale. The name of the
dealer and the terms of the transaction will be set forth in the Prospectus
Supplement relating thereto.
The Securities also may be offered through agents designated by the Company
from time to time. Any such agent will be named, and the terms of any such
agency will be set forth, in the Prospectus Supplement relating thereto. Unless
otherwise indicated in such Prospectus Supplement, any such agent will act on a
best efforts basis for the period of its appointment.
Dealers and agents named in the Prospectus Supplement may be deemed to be
underwriters (within the meaning of the Securities Act) of the Securities
described therein and, under agreements which may be entered into with the
Company, may be entitled to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities Act, or to
contribution for payments which they may be required to make in respect
thereof.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, the Company in the ordinary course of business.
13
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutional investors to
purchase the Securities from the Company at the public offering price set forth
in the Prospectus Supplement pursuant to delayed delivery contracts providing
for payment and delivery on a specified date in the future. Institutional
investors with whom such 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
shall in all cases be subject to the approval of the Company. Such contracts
will be subject only to those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission payable
for solicitation of such contracts. Agents and underwriters will not have any
responsibility in respect of the validity of such contracts or the performance
of the Company or such institutional investors thereunder.
The anticipated place and time of delivery for the Securities will be set
forth in the Prospectus Supplement.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed upon for the
Company by Elizabeth M. Steele, Vice President/General Counsel and Secretary of
the Company.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
included in the Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1995, which are incorporated herein by reference, have been audited by
Arthur Andersen LLP, independent certified public accountants, as indicated in
their report with respect thereto, and are incorporated herein by reference
upon the authority of said firm as experts in giving said reports.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses, other than underwriting fees and
commissions, expected to be borne by the Company in connection with the
securities being registered.
SEC filing fee............................................... $206,896.55
Printing and engraving fees.................................. 100,000.00
Legal fees and expenses...................................... 20,000.00
Accounting fees and expenses................................. 20,000.00
Blue sky fees and expenses................................... 10,000.00
Trustees' fees............................................... 30,000.00
Rating agency fees........................................... 150,000.00
Miscellaneous................................................ 25,000.00
------------
Total.................................................... *$561,896.55
============
--------
*All amounts listed above, except for the SEC filing fee, are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation of the Company permit indemnification of the
Company's officers and directors when such are parties or threatened to be made
parties to any proceeding (other than an action by or in the name of the
corporation) by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, against losses incurred by him
or her in connection with such proceeding if the officer or director seeking
indemnification acted in good faith and in a manner reasonably believed to be
in the best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her
conduct was unlawful. The Articles of Incorporation of the Company further
provide that the corporation will indemnify its officers and directors against
losses incurred as the result of a proceeding by or in the name of the
corporation if the officer or director seeking indemnification acted in good
faith and in a manner reasonably believed to be in the best interests of the
corporation, but no indemnification will be made in such case if the officer or
director seeking indemnification has been adjudged to be liable for negligence
or misconduct in the performance of his or her duty to the corporation unless
and only to the extent that the court in which the action was brought
determines upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnification for such expenses that the court deems proper.
The Colorado Business Corporation Act (the "Act") requires a Colorado
corporation to indemnify its officers and directors against reasonable expenses
under certain circumstances and permits it to indemnify its officers and
directors against liability and reasonable expenses under certain
circumstances. Unless limited by the corporation's articles of incorporation,
the Act requires a corporation to indemnify its officers and directors against
reasonable expenses incurred in any proceeding to which the officer or director
is a party and was wholly successful, on the merits or otherwise, in defense of
the proceeding. In addition to this mandatory indemnification, the Act provides
that a corporation may indemnify its officers and directors against liability
and reasonable expenses if the officer or director acted in good faith and in a
manner reasonably believed to be in the best interests of the corporation in
the case of conduct in an official capacity, in a manner he reasonably believed
was at least not opposed to the corporation's best interests in all other
cases, or in a manner he had no reasonable cause to believe was unlawful in the
case of criminal proceedings. In actions by or in the name of the corporation,
the Act provides the same standard but limits indemnification to reasonable
expenses incurred by the director and prohibits any indemnification if the
director was adjudged liable to the corporation. The Act also prohibits
indemnification of a director in connection with actions charging improper
personal benefit to the director if the director is adjudged liable on that
basis.
II-1
ITEM 16. EXHIBITS
As noted, the following exhibits (i) are being filed as part of this
electronic transmission, or (ii) are incorporated by reference herein from
documents already on file with the Securities and Exchange Commission, or (iii)
will be filed as exhibits to documents incorporated by reference herein
subsequent to the date of this Registration Statement's effectiveness.
1.1 Form of Underwriting Agreement Basic Provisions for Debt
Securities, with Form of Terms Agreement.(1)
1.2 Form of Underwriting Agreement for Class A Common Stock.(2)
3.1 Articles of Incorporation of the Company, as amended.(3)
3.2 Bylaws of the Company, as amended.(4)
4.1 Form of Indenture for Senior Debt Securities.(5)
4.2 Form of Senior Debt Security. (included in Exhibit 4.1)
4.3 Form of Indenture for Senior Subordinated Debt Securities.(6)
4.4 Form of Senior Subordinated Debt Security. (included in Exhibit
4.3)
4.5 Form of Indenture for Subordinated Debt Securities.(7)
4.6 Form of Subordinated Debt Security. (included in Exhibit 4.5)
4.7 Specimen Stock Certificate with respect to the Company's Class A
Common Stock.(8)
5.1 Opinion of Elizabeth M. Steele as to the legality of the
securities being registered.(9)
23.1 Consent of Elizabeth M. Steele. (included in the opinion of Ms.
Steele filed as Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP.(9)
24.1 Power of Attorney. (included on the signature page of the
Registration Statement)
25.1 Statement of Eligibility of Trustee on Form T-1 with respect to
the Senior Debt Securities.(9)
25.2 Statement of Eligibility of Trustee on Form T-1 with respect to
the Senior Subordinated Debt Securities.(9)
25.3 Statement of Eligibility of Trustee on Form T-1 with respect to
the Subordinated Debt Securities.(9)
--------
(1) Incorporated by reference to Exhibit 1 to Post-Effective Amendment No. 1 to
the Company's Registration Statement on SEC Form S-3 (Registration No. 33-
64604) filed March 15, 1994.
(2) To be filed as an exhibit to a report to be incorporated by reference
herein subsequent to the date of this Registration Statement's
effectiveness.
(3) Incorporated by reference to Exhibit 3(a) to the Company's Annual Report on
SEC Form 10-K for the Company's fiscal year ended May 31, 1988 and to
Exhibit 3.2 to the Company's Annual Report on SEC Form 10-K for the
Company's fiscal year ended May 31, 1995.
(4) Incorporated by reference to Exhibit 3.3 to the Company's Annual Report on
SEC Form 10-K for the Company's fiscal year ended May 31, 1995.
(5) Incorporated by reference to Exhibit 4.1(e) to the Company's Registration
Statement on SEC Form S-3 (Registration No. 33-47030) filed April 8, 1992.
(6) Incorporated by reference to Exhibit 4.1(f) to the Company's Registration
Statement on SEC Form S-3 (Registration No. 33-47030) filed April 8, 1992.
(7) Incorporated by reference to Exhibit 4.1(g) to the Company's Registration
Statement on SEC Form S-3 (Registration No. 33-47030) filed April 8, 1992.
(8) Incorporated by reference to Exhibit 4 to the Company's Registration
Statement on SEC Form S-3 (Registration No. 33-41392) filed June 25, 1991.
(9) Filed herewith.
II-2
ITEM 17. UNDERTAKINGS.
The 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 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(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 the undertakings set forth in sub-paragraphs (i) and
(ii) above do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's Annual
Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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 Registrant hereby undertakes that for purposes of determining any
liability under the Securities Act, the information omitted from the formal
prospectus filed as part of the Registration Statement in reliance upon Rule
430A and contained in the form of prospectus filed by the Registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of the Registration Statement as of the time it was declared effective.
For purposes of determining any liability under the Securities Act, each post-
effective amendment that contains a form of prospectus shall be deemed to be a
new registration statement 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referred to in Item 15, 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 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, JONES INTERCABLE,
INC. CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF
THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ENGLEWOOD AND THE STATE OF COLORADO ON THE 8TH DAY
OF SEPTEMBER, 1995.
JONES INTERCABLE, INC.,
a Colorado corporation
/s/ Glenn R. Jones
By: _________________________________
(Glenn R. Jones)
Chairman and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE APPEARS
BELOW CONSTITUTES AND APPOINTS GLENN R. JONES, JAMES B. O'BRIEN, KEVIN P.
COYLE, ELIZABETH M. STEELE, ROBERT S. ZINN AND EACH OF THEM, HIS OR HER TRUE
AND LAWFUL ATTORNEYS-IN-FACT AND AGENTS, WITH FULL POWER OF SUBSTITUTION AND
RESUBSTITUTION, FOR HIM OR HER AND HIS OR HER NAME, PLACE AND STEAD, IN ANY AND
ALL CAPACITIES, TO SIGN ANY AND ALL AMENDMENTS TO THIS REGISTRATION STATEMENT,
AND TO FILE THE SAME, WITH ALL EXHIBITS THERETO, AND OTHER DOCUMENTS IN
CONNECTION THEREWITH, WITH THE SECURITIES AND EXCHANGE COMMISSION, GRANTING
UNTO SAID ATTORNEYS-IN-FACT AND AGENTS 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 TO ALL INTENTS AND PURPOSES AS THEY MIGHT OR COULD
DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID ATTORNEYS-IN-FACT
AND AGENTS, OR THEIR SUBSTITUTE OR SUBSTITUTES, MAY LAWFULLY DO OR CAUSE TO BE
DONE BY VIRTUE HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Glenn R. Jones Chairman of the Board and September 8, 1995
____________________________________ Chief Executive Officer
(Glenn R. Jones) (Principal Executive
Officer)
/s/ Kevin P. Coyle Group Vice President/Finance September 8, 1995
____________________________________ (Principal Financial
(Kevin P. Coyle) Officer)
/s/ Larry W. Kaschinske Controller (Principal September 8, 1995
____________________________________ Accounting Officer)
(Larry W. Kaschinske)
/s/ James B. O'Brien President and Director September 8, 1995
____________________________________
(James B. O'Brien)
/s/ Raymond L. Vigil Group Vice President/Human September 8, 1995
____________________________________ Resources and Director
(Raymond L. Vigil)
/s/ Derek H. Burney Director September 8, 1995
____________________________________
(Derek H. Burney)
/s/ William E. Frenzel Director September 1, 1995
____________________________________
(William E. Frenzel)
II-4
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Donald L. Jacobs Director September 8, 1995
____________________________________
(Donald L. Jacobs)
/s/ James J. Krejci Director September 8, 1995
____________________________________
(James J. Krejci)
/s/ Philip R. Ladouceur Director September 8, 1995
____________________________________
(Philip R. Ladouceur)
/s/ Christine Jones-Marocco Director September 8, 1995
____________________________________
(Christine Jones-Marocco)
/s/ Daniel E. Somers Director September 8, 1995
____________________________________
Daniel E. Somers
/s/ Robert S. Zinn Director September 8, 1995
____________________________________
(Robert S. Zinn)
Director
____________________________________
(Robert B. Zoellick)
/s/ David K. Zonker Director September 8, 1995
____________________________________
(David K. Zonker)
II-5
EX-5.1
2
OPINION
[LETTERHEAD OF JONES INTERCABLE, INC. APPEARS HERE]
September 10, 1995
Jones Intercable, Inc.
9697 East Mineral Avenue
Englewood, Colorado 80112
Re: Jones Intercable, Inc.
Registration Statement on Form S-3
Relating to $600,000,000 of Securities
Ladies and Gentlemen:
I have acted as counsel for Jones Intercable, Inc., a Colorado
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of an indeterminate principal
amount of Senior Debt Securities, Senior Subordinated Debt Securities and
Subordinated Debt Securities (collectively, the "Debt Securities") and an
indeterminate number of shares of the Company's Class A Common Stock, $.01 par
value per share (the "Equity Securities"), with an aggregate initial public
offering price not to exceed $600,000,000 (the "Securities"). A Registration
Statement on Form S-3 (the "Registration Statement") with respect to the
Securities will be filed under the Act with the Securities and Exchange
Commission on or about September 10, 1995.
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, I have examined and I am familiar
with originals or copies, certified or otherwise identified to my satisfaction,
of such documents as I have deemed necessary or appropriate as a basis for the
opinions set forth herein, including (i) the Registration Statement in the form
to be filed by the Company with the Commission, (ii) the Indentures for Senior
Debt Securities, Senior Subordinated Debt Securities and Subordinated Debt
Jones Intercable, Inc.
September 10, 1995
Page 2
Securities in forms to be filed by the Company with the Commission as Exhibits
4.1, 4.3 and 4.5 to the Registration Statement (the "Indentures"), (iii) the
specimen stock certificate with respect to the Company's Class A Common Stock in
the form to be filed by the Company with the Commission as Exhibit 4.7 to the
Registration Statement, (iv) the Articles of Incorporation and Bylaws of the
Company, as in effect on the date hereof, and in the form to be filed by the
Company with the Commission as Exhibits 3.1 and 3.2 to the Registration
Statement, and (v) resolutions of the Board of Directors of the Company relating
to the filing of the Registration Statement, the proposed issuance of the
Securities and related matters (the "Board Resolutions"). In my examination, I
have relied upon certificates, statements and representations of the Company and
others.
Based upon and subject to the foregoing, I am of the opinion that:
1. The issuance and sale by the Company of up to $600,000,000 of
Securities, as provided in the Registration Statement, have been duly and
validly authorized by all necessary corporate action of the Company.
2. When (i) the Registration Statement has become effective under the
Act, (ii) the applicable Indenture has been qualified under the Trust Indenture
Act of 1939 and has been duly executed and delivered by the parties thereto,
(iii) the definitive terms of any Debt Securities and of their issue and sale
have been duly established in conformity with the Board Resolutions and the
applicable Indenture so as not to violate any applicable law or agreement or
instrument then binding on the Company, (iv) such Debt Securities have been duly
executed and authenticated in accordance with the Indenture and (v) such Debt
Securities have been issued and sold as contemplated in the Registration
Statement, the prospectus contained therein and in any applicable supplement to
the prospectus, such Debt Securities will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided by the applicable
Indenture, except (A) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or hereafter
in effect relating to creditors' rights generally and (B) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
certain equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
Jones Intercable, Inc.
September 10, 1995
Page 3
3. When (i) the Registration Statement has become effective under the
Act and (ii) the Equity Securities have been issued and sold as contemplated in
the Registration Statement, the prospectus contained therein and in any
applicable supplement to the prospectus, such Equity Securities will be duly and
validly authorized and issued shares of Class A Common Stock, $.01 par value per
share, of the Company, fully paid and non-assessable.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. I also consent to the reference to
me under the heading "Legal Matters" in the prospectus included in the
Registration Statement.
Very truly yours,
/S/ ELIZABETH M. STEELE
Elizabeth M. Steele
Vice President/General Counsel
and Secretary
EMS/dm
EX-23.2
3
ARTHUR ANDERSEN 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 of our report dated August 11,
1995 included in Jones Intercable, Inc.'s Form 10-K for the year ended May 31,
1995 and to all references to our Firm included in this registration statement.
/S/ Arthur Andersen LLP
Denver, Colorado,
September 8, 1995.
EX-25.1
4
SENIOR DEBT T-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)
-----
--------------------------
U.S. TRUST COMPANY OF CALIFORNIA, N.A.
(Exact name of trustee as specified in its charter)
95-4311476
(I.R.S. employer
identification No.)
515 South Flower Street, Suite 2700
Los Angeles, CA 90071
(Address of principal (Zip Code)
executive offices)
DWIGHT LIU
515 South Flower Street, Suite 2700
Los Angeles, California 90071
(213) 861-5000
(Name, address, including zip code and telephone number of agent for service)
----------------------------
JONES INTERCABLE INCORPORATED
(Exact name of obligors as specified in its charter)
COLORADO 84-0613514
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) identification No.)
9697 E. Mineral Avenue
ENGLEWOOD, CO 80155-3309
(303) 792-3111
(Address of principal executive offices)
Senior Notes
------------
(Title of indenture securities)
1
GENERAL
-------
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.
Comptroller of the Currency
490 L'Enfant Plaza East, S.W.
Washington, D.C. 20219
Federal Deposit Insurance Corporation
550 17th Street, N.W.
Washington, D.C. 20429
Federal Reserve Bank (12th District)
San Francisco, California
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with the Obligor
-----------------------------
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15.
The obligor currently is not in default under any of its outstanding
securities for which U.S. Trust Company of California, N.A. is Trustee.
Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and
15 of Form T-1 are not required under General Instruction B.
16. List of Exhibits
----------------
T-1.1 - A copy of the Articles of Association of U.S. Trust Company of
California, N.A. currently in effect; incorporated herein by
reference to Exhibit T-1.1 filed with Form T-1 Statement,
Registration No. 33-33031.
T-1.2 - Included in Exhibit T-1.1
T-1.3 - Included in Exhibit T-1.1
2
T-1.4 - A copy of the By-Laws of U.S. Trust Company of California, N.A.,
as amended to date; incorporated by reference to Exhibit T-1.4
filed with Form T-1 Statement, Registration No. 33-54136.
T-1.6 - The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939; incorporated herein by reference to
Exhibit T-1.6 filed with Form T-1 Statement, Registration No. 33-
33031.
T-1.7 - A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
NOTE
----
As of September 1, 1995 the trustee had 20,000 shares of Capital Stock
outstanding, all of which are owned by U.S. Trust Corporation. U.S. Trust
Corporation had 9,734,938 shares of Common Stock as of September 1, 1995.
The term "trustee" in Items 2, 5, 6, 7, 8, 9, 10, 11, and 14 refers to each of
U.S. Trust Company of California, N.A. and U.S. Trust Corporation.
In answering Item 2 in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
-----------------------------
Pursuant to the requirements of the Trust Indenture of Act of 1939, the trustee,
U.S. Trust Company of California, N.A., 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 1st day of September 1995.
U.S. TRUST COMPANY OF CALIFORNIA, N.A.
Trustee
By: /s/ SANDEE' PARKS
-----------------------------
Sandee' Parks
Authorized Signatory
3
U.S. TRUST COMPANY OF
CALIFORNIA, N.A. Call Date: 06/30/95 ST-BK: 06-0784 FFIEC 033
515 S. FLOWER STREET, SUITE 2700
LOS ANGELES, CA 90071-2291 Vendor ID: D CERT: 33332 Page RC-1
Transit Number: 12204024 9
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
C200 --
Dollar Amounts in Thousands
------------------------------------------------------------------------------------------------------------------------------------
ASSETS
1. Cash and balance due from depository institutions (from Schedule RC-A): RCON
a. Noninterest-bearing balances and currency and coin (1)______________________________________0081.. 1,692 1.a
b. Interest-bearing balances (2)_______________________________________________________________0071.. 180 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)__________________________________1754.. 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)________________________________1773.. 13,881 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold__________________________________________________________________________0276.. 15,000 3.a
b. Securities purchased under agreements to resell_____________________________________________0277.. 0 3.b
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income RCON
(from Schedule RC-C)________________________________________________2122.. 77,159 ............ 4.a
b. LESS: Allowance for loan and lease losses___________________________3123.. 1,349 ............ 4.b
c. LESS: Allocated transfer risk reserve_______________________________3128.. 0 ............ 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c)_________________________________________2125.. 75,810 4.d
5. Trading assets__________________________________________________________________________________3545.. 0 5.
6. Premises and fixed assets (including capitalized leases)________________________________________2145.. 8,136 6.
7. Other real estate owned (from Schedule RC-M)____________________________________________________2150.. 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M)__________________________________________________________________________________2130.. 0 8.
9. Customers' liability to this bank on acceptances outstanding____________________________________2155.. 0 9.
10. Intangible assets (from Schedule RC-M)__________________________________________________________2143.. 1,455 10.
11. Other assets (from Schedule RC-F)_______________________________________________________________2160.. 3,667 11.
12. Total assets (sum of items 1 through 11)________________________________________________________2170.. 119,771 12.
--------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
U.S. TRUST COMPANY OF
CALIFORNIA, N.A. Call Date: 06/30/95 ST-BK: 06-0784 FFIEC 033
515 S. FLOWER STREET, SUITE 2700
LOS ANGELES, CA 90071-2291 Vendor ID: D CERT: 33332 Page RC-2
Transit Number: 12204024 10
Schedule RC - Continued
Dollar Amounts in Thousands
------------------------------------------------------------------------------------------------------------------------------------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of RCON
columns A and C from Schedule RC-E)_________________________________________________________2200.. 96,527 13.a
(1) Noninterest-bearing (1)________________________________________6631.. 10,069 ............ 13.a.1
(2) Interest-bearing_______________________________________________6636.. 86,458 ............ 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs_______________________________ ............
(1) Noninterest-bearing____________________________________________________________________ ............
(2) Interest-bearing_______________________________________________________________________ ............
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased_____________________________________________________________________0278.. 0 14.a
b. Securities sold under agreements to repurchase______________________________________________0279.. 0 14.b
15. a. Demand notes issued to the U.S. Treasury____________________________________________________2840.. 0 15.a
b. Trading liabilities_________________________________________________________________________3548.. 0 15.b
16. Other borrowed money:
a. With original maturity of one year or less__________________________________________________2232.. 0 16.a
b. With original maturity of more than one year________________________________________________2333.. 0 16.b
17. Mortgage indebtedness and obligations under capitalized leases__________________________________2910.. 0 17.
18. Bank's liability on acceptances executed and outstanding________________________________________2920.. 0 18.
19. Subordinated notes and debentures_______________________________________________________________3200.. 0 19.
20. Other liabilities (from Schedule RC-G)__________________________________________________________2930 4,038 20.
21. Total liabilities (sum of items 13 through 20)__________________________________________________2948.. 100,565 21.
22. Limited-life preferred stock and related surplus________________________________________________3382.. 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus___________________________________________________3838.. 5,000 23.
24. Common stock____________________________________________________________________________________3230.. 2,000 24.
25. Surplus (exclude all surplus related to preferred stock)________________________________________3839.. 10,251 25.
26. a. Undivided profits and capital reserves______________________________________________________3632.. 1,963 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities______________________8434.. ( 8) 26.b
27. Cumulative foreign currency translation adjustments_____________________________________________ ............
28. Total equity capital (sum of items 23 through 27)_______________________________________________3210.. 19,206 28.
29. Total liabilities, limited-life preferred stock, equity capital (sum of
items 21, 22, and 28)___________________________________________________________________________3300.. 119,771 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes
the most comprehensive level of auditing work performed for the bank by independent
external auditors as of any date during 1994____________________________________________________6724.. N/A M.1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company (but external auditors
not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in accordance 8 = No external audit work
with generally accepted auditing standards by a certified
public accounting firm (may be required by state charter-
ing authority)
--------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
EX-25.2
5
SENIOR SUBORDINATED DEBT T-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
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
JONES INTERCABLE, INC.
(Exact name of Registrant as specified in its charter)
Colorado 84-0613514
(State of Incorporation) (I.R.S. Employer
Identification No.)
9697 East Mineral Avenue
Englewood, CO 80112
(Address of Principal Executive Offices) (Zip Code)
SENIOR SUBORDINATED DEBT SECURITIES
Title of the Indenture Securities)
GENERAL
-------
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.
Comptroller of the Currency
Washington, D.C.
(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.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's knowledge
the obligor is not in default under any Indenture for which the Trustee acts
as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this statement
of eligibility and qualification. Each of the exhibits listed below is
incorporated by reference from registration number 22-26548.
1. Copy of Articles of Association.
2. Copy of Certificate of Authority to Commence Business.
3. Authorization of the Trustee to exercise corporate trust powers
(included in Exhibits 1 and 2; no separate instrument).
4. Copy of existing By-Laws.
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of the act.
7. Copy of the latest report of condition of the Trustee published pursuant
to law or the requirements of its supervising or examining authority.
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligors, or affiliates, 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, First Trust National Association, an Association organized and existing
under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 5th day of September,
1995.
FIRST TRUST NATIONAL ASSOCIATION
[SEAL]
/s/ Sheryl A. Christopherson
----------------------------
Sheryl A. Christopherson
Vice President
/s/ Richard H. Prokosch
-----------------------
Richard H. Prokosch
Assistant Secretary
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that reports of
examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: September 5, 1995
FIRST TRUST NATIONAL ASSOCIATION
/s/ Sheryl A. Christopherson
-----------------------------------------
Sheryl A. Christopherson
Vice President
EX-25.3
6
SUBORDINATED DEBT T-1
Securities Act of 1933 File No.
(If application to determine eligibility of Trustee for delayed offering
pursuant to Section 305(b)(2))
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------------------------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
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)
-------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
(Exact name of trustee as specified in its charter)
94-1687665
(I.R.S. employer identification no.)
Head Office:
555 California Street, San Francisco, California 94104
Los Angeles Headquarters:
555 South Flower Street, Los Angeles, California 90071
(Address of principal executive offices)
Jones Intercable, Inc.
---------------------------------------------
(Exact name of obligor as specified in its charter)
Colorado 84-0613514
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
9697 East Mineral Avenue
------------------------
Englewood, CO 80112
--------------------
(Address of principal executive offices)
Subordinated Debt Securities
----------------------------
(Title of Indenture Securities)
As of September 8, 1995
-----------------------
--------------------------------------------------------------------------------
-1-
FORM T-1
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.
Comptroller of the Currency
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of San Francisco (Twelfth District)
San Francisco, California
Board of Governors of the Federal Reserve System
Washington, D.C.
(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
affiliation.
None.
In answering this item the trustee has relied in part on information
furnished by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
Trustee has also examined its own books and records for the purpose of
answering this item.
3. VOTING SECURITIES OF THE TRUSTEE: Furnish the following information as to
each class of voting securities of the trustee:
As of September 8, 1995
================================================================================
COL. A COL. B
Amount
Title of Class Outstanding
===============================================================================
Common Stock (1.5625 Par Value) 38,304,198 Shares
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
-2-
(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
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
such connection.
None.
In answering this item the trustee has relied in part on information
furnished by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy of completeness of such information.
Trustee has also examined its own books and records for the purpose of
answering this 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 September 8, 1995
================================================================================
COL. A COL. B COL. C COL. D
Percentage of
Voting Securities
Represented by
Amount Owned Amount given in
Name of Owner Title of Class Beneficially Col. C
================================================================================
Less than 1%
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 September 8, 1995
-3-
================================================================================
COL. A COL. B COL. C COL. D
Percentage of
Voting Securities
Represented by
Amount Owned Amount given in
Name of Owner Title of Class Beneficially Col. C
================================================================================
None.
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 September 8, 1995
===============================================================================
COL. A COL. B COL. C COL. D
Amount Owned
Beneficially
or Held as
Collateral
Whether the Security for Percent of Class
Securities are Obligations Represented
Voting or Non- in Default by Amount
Title of Class Voting Securities by Trustee Given in Col. C
===============================================================================
Less than 1%.
In answering this item the trustee has relied in part on information
furnished by the obligor, and the trustee disclaims responsibility for the
accuracy or completeness of such information. Trustee has also examined its
own books and records for the purpose of answering this item.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEES. 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 September 8, 1995
===============================================================================
COL. A COL. B COL. C COL. D
Amount Owned
Beneficially
or Held as
Collateral
Security for Percent of Class
Name of Issuer Obligations Represented
and Amount in Default by Amount
Title of Class Outstanding by Trustee Given in Col. C
===============================================================================
None.
-4-
In answering this item the trustee has relied in part on information furnished
by the obligor, and the trustee disclaims responsibility for the accuracy or
completeness of such information. Trustee has also examined its own books and
records for the purpose of answering this 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% 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 September 8, 1995
===============================================================================
COL. A COL. B COL. C COL. D
Amount Owned
Beneficially
or Held as
Collateral
Security for Percent of Class
Name of Issuer Obligations Represented
and Amount in Default by Amount
Title of Class Outstanding by Trustee Given in Col. C
===============================================================================
Less than 1%.
In answering this item the trustee has relied in part on information
furnished by the obligor, and the trustee disclaims responsibility for the
accuracy or completeness of such information. Trustee has also examined its
own books and records for the purpose of answering this 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 September 8, 1995
===============================================================================
COL. A COL. B COL. C COL. D
Amount Owned
Beneficially
or Held as
Collateral
Security for Percent of Class
Name of Issuer Obligations Represented
and Amount in Default by Amount
Title of Class Outstanding by Trustee Given in Col. C
===============================================================================
Less than 1%.
-5-
In answering this item the trustee has relied in part on information
furnished by the obligor, and the trustee disclaims responsibility for the
accuracy or completeness of such information. Trustee has also examined its
own books and records for the purpose of answering this item.
The foregoing answers were prepared prior to the ascertainment of the Trustee of
all of the facts and are based on incomplete information. Such answers are to
be considered as correct unless amended.
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 September 8, 1995
================================================================================
COL. A COL. B COL. C
Name of Indebtedness Amount Outstanding Date Due
-------------------- ------------------ --------
None
================================================================================
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 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.
Not Applicable
14. AFFILIATIONS WITH THE UNDERWRITERS
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not Applicable
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
16. LIST OF EXHIBITS
List below all exhibits filed as a part of this statement of eligibility and
qualification.
-6-
Exhibit A
Articles of Association of Bank of America National Trust and Savings
Association (formerly Bank of Italy). By-Laws of Bank of America
National Trust and Savings Association.
*Exhibit B
Copy of Charter under date of March 1, 1927 authorizing Bank of Italy
National Trust and Savings Association to commence business of banking.
*Exhibit C
Copy of authorization of the Federal Reserve Board issued under date of
November 1, 1930, granting Bank of America National Trust and Savings
Association the right to act in a fiduciary capacity.
*Exhibit D
Certificate issued by the Comptroller of the Currency under date of
November 1, 1930 evidencing consolidation of Bank of Italy National
Trust and Savings Association and Bank of America of California under
the corporate title of Bank of America National Trust and Savings
Association.
*Exhibit E
Copy of Charter under date of March 31, 1969, authorizing B.A. National
Bank to commence business of banking.
*Exhibit F
Copy of certificate issued by the Comptroller of the Currency under
date of April 1, 1969, evidencing the merger of Bank of America
National Trust and Savings Association into B.A. National Bank under
the title "Bank of America National Trust and Savings Association".
*Exhibit G
A copy of the approval for "Bank of America National Trust and Savings
Association" to operate the presently existing branches of Bank of
America National Trust and Savings Association.
Exhibit H
Consent of Bank of America National Trust and Savings Association
required by Section 321 (b) of the Act.
Exhibit I
Copy of the latest Report of Condition at the close of business on
June 30, 1995 of the Trustee published in response to call made
-------------
by Comptroller of Currency.
Exhibit J
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)
Exhibit K
Foreign trustees are required to furnish a consent to service of
process (see Rule 10a-4 under the Act). (Not Applicable)
-7-
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, Bank of America National Trust and Savings Association, a
corporation organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, and its seal
to be hereunto affixed and attested, all in the City and County of San
Francisco, State of California, on the day of September, 1994.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: Kristin M. Boettger
------------------------------
Kristin M. Boettger
Assistant Vice President
Attest: Jennifer Holder
-------------------------------
Jennifer Holder
Vice President
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, Bank of America National Trust and Savings Association, a
corporation organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, and its seal
to be hereunto affixed and attested, all in the City and County of San
Francisco, State of California, on the day of September, 1994.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Kristin M. Boettger
------------------------------
Kristin M. Boettger
Assistant Vice President
Attest: /s/ Jennifer Holder
-------------------------------
Jennifer Holder
Vice President
EXHIBIT "H"
The undersigned, as Indenture Trustee or prospective Indenture Trustee under
the Indenture dated as of September 8, 1995, does hereby consent that reports of
examinations by Federal, State, Territorial, or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon its
request, in accordance with an to the extent prescribed under Section 321 of the
Trust Indenture Act of 1939.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Kristin M. Boettger
------------------------------
Kristin M. Boettger
Assistant Vice President
Attest: /s/ Jennifer Holder
-------------------------------
Jennifer Holder
Vice President
-8-
ARTICLES OF ASSOCIATION
AND
BYLAWS
------------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
Articles: Last Amended June 23, 1992
Bylaws: Last Amended May 26, 1994
-----
INDEX
-----
Page
----
Articles of Association 1
-----------------------
By-laws
-------
Article I Offices 4
Article II Meetings of Shareholders 4
Article III Directors 6
Article IV Meetings of the Board of Directors 7
Article V Committees 9
Article VI Advisory Directors and
Advisory Boards
Article VII Officers 15
Article VIII Capital Stock--Certificates 17
of Stock
Article IX Indemnification 19
Article X Emergency 21
Article XI Miscellaneous 22
-i-
ARTICLES OF ASSOCIATION
OF
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
FIRST. The title of the Association shall be "Bank of America National
Trust and Savings Association."
SECOND. The places where the banking houses and offices of the Association
shall be located and its operations of discount and deposit carried on, and its
general business conducted, shall be in the State of California, its Head Office
being in the City and County of San Francisco, State of California, with such
branches as may be authorized and established.
The Board of Directors shall have the power to move any of the branches of
the Association from one location to another as may be authorized by law or
regulation, or to discontinue the operations of any of such branches. The Head
Office of the Association and any of its branches may, pursuant to appropriate
action taken by the Directors, be moved from one location to another, as may be
authorized by law or regulation of the Comptroller of the Currency, and without
action by the shareholders.
THIRD. BOARD OF DIRECTORS. The Board of Directors shall consist of such
number of directors, not less than five nor more than twenty-five, as shall be
determined from time to time by resolution of the Board of Directors or by the
shareholders at any annual or special meeting.
A director of the Association shall not be personally liable to the
Association or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Association or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for willful or negligent violation of Sections 56 or 60
of Title 12 of the United States Code, or (iv) for any transaction from which
the director derives any improper personal benefit. Any repeal or modification
of the foregoing sentence shall not result in any liability for a director with
respect to any action or omission occurring prior to such repeal or
modification.
FOURTH. The regular annual meeting of the shareholders of the Association
shall be held in the city of its Head Office on such date as shall be from time
to time established by bylaws duly adopted by the Association. At such meeting a
Board of Directors shall be elected, but if no election shall be held on that
day, it may be held at any regular adjournment thereof or at a subsequent
special meeting called in accordance with the provisions of the laws of the
United States.
EIGHTH. AMENDMENTS TO ARTICLES OF ASSOCIATION AND SPECIAL MEETINGS OF
SHAREHOLDERS. Except as otherwise specifically provided by these Articles of
Association or by statute, these Articles of Association may be amended at any
regular or special meeting of shareholders by a majority of the votes to which
the holders of the shares of capital stock at the time outstanding are entitled.
Except as otherwise specifically provided by statute, special meetings of the
shareholders may be called for any purpose at any time by the Board of Directors
or by the holders of at least ten percent of the then outstanding shares of any
class. Every such special meeting shall be called by mailing, not less than ten
days before the time fixed for the meeting, to all shareholders of record
entitled to act and vote at such meeting at their respective addresses as shown
on the books of the Association, a notice stating the purpose of the meeting.
Such notice may be waived in writing.
Section 4. NOMINATIONS. Nominations for election to the Board of
Directors may be made by the Board of Directors or by any shareholder entitled
to vote for the election of Directors. Nominations other than those made by or
on behalf of the existing management of the Bank, shall be made in writing and
shall include the following information to the extent known to the nominating
shareholder:
(1) Name and address of each proposed nominee;
(2) The principal occupation of each proposed nominee;
(3) The total number of shares that, to the knowledge of the
nominating shareholder, will be voted for each proposed nominee;
(4) The name and residence address of the nominating shareholder; and
(5) The number of shares owned by the nominating shareholder.
Such nominations shall be delivered or mailed to the President of the Bank
and to the Comptroller of the Currency, Washington, D.C., not less than fourteen
days nor more than fifty days prior to any meeting of stockholders called for
the election of Directors, provided however, that if less than twenty-one days'
notice of the meeting is given to shareholders, such nomination shall be mailed
or delivered to the President of the Bank and to the Comptroller of the Currency
not later than the close of business on the seventh day following the day on
which the notice of meeting was mailed. Nominations not made in accordance
herewith may, in his or her discretion, be disregarded by the Chairman of the
meeting, and upon his or her instructions, the vote tellers may disregard all
votes cast for each such nominee.
Section 5. SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Association, may be called by the Chairman of the Board or the
President and shall be called by the Chairman of the Board or the President or
Secretary at the request in writing of a majority of the Board of Directors, or
at the request in writing of shareholders owning a majority in amount of the
entire capital stock of the Bank issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6. NOTICE OF SPECIAL MEETING. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be given not less than ten nor more than
fifty days before the date of the meeting, to each shareholder entitled to vote
at such meeting.
Section 7. BUSINESS. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice of the
meeting or in a duly executed waiver of notice.
Directors last elected by shareholders where such number was sixteen or more,
but in no event shall the number of Directors exceed twenty-five. Each Director
shall take and subscribe his or her Oath of Office before entering upon the
duties of a Director. Each Director shall be a shareholder of BankAmerica
Corporation, if and to the extent required by law. The Directors shall be
elected at the annual meeting of shareholders, except as provided in Section 2
of this Article III, and each Director shall hold office until his or her
successor is elected and qualified or until his or her earlier removal.
Section 2. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Vacancies and newly
created directorships resulting from any increase in the authorized number of
Directors may be filled by a majority of the Directors then in office, though
less than a quorum, or by a sole remaining Director, and the Directors so chosen
shall hold office until the next annual election and until their successors are
duly elected and shall qualify or until their earlier resignations or removals.
If there are no Directors in office, then an election of Directors may be held
in the manner provided by statute.
Section 3. RESIGNATIONS. Any Director of the Bank may resign at any time
by giving written notice to the Chairman of the Board or President or to the
Secretary of the Bank. The resignation of any Director shall take effect at the
date of receipt of such notice or at any later date specified therein; and
unless otherwise specified therein the acceptance of such resignation by the
Board of Directors shall not be necessary to make it effective.
Section 4. GENERAL POWERS. The business of the Bank shall be managed by or
under the direction of its Board of Directors which may exercise all such powers
of the Bank and do all such lawful acts and things as are not by statute or by
the Articles of Association or by these By-laws directed or required to be
exercised or done by the shareholders.
Section 5. COMPENSATION OF DIRECTORS, OFFICERS AND EMPLOYEES. Fees and
expenses payable to Directors shall be in such amounts as shall be determined by
the Board of Directors, except that no Director of the Bank who receives any
salary as an officer or employee thereof shall receive any per diem or other
compensation for attending any meeting of the Board of Directors or of the
Executive Committee or of any other committee. The Board of Directors shall have
power to fix the compensation of all officers and employees of the Bank.
ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. PLACE OF MEETINGS. The Board of Directors of the Bank
ARTICLE V
COMMITTEES
Section 1. EXECUTIVE COMMITTEE. During the intervals between meetings of
the Board, all power and authority of the Board regarding the management of the
business and affairs of the Bank shall be exercised by the Executive Committee,
except that the committee shall have no power:
(a) To amend the Articles of Association or the By-laws of the Bank.
(b) To recommend to the shareholders of the Bank the sale, lease or
exchange of all or substantially all of the Bank's property and assets.
(c) To adopt an agreement of merger or consolidation.
(d) To recommend to the shareholders of the Bank the dissolution of the
Bank or a revocation of a dissolution.
(e) To declare a dividend.
(f) To authorize the issuance of stock.
(g) To appoint or remove the Chairman of the Board or the President of the
Bank.
The committee shall consist of such Directors as the Board may from time to
time appoint by resolution passed by a majority of the whole Board.
Section 2. MANAGING COMMITTEE. During intervals between meetings of the
Executive Committee, the Managing Committee shall exercise the power and
authority of the Executive Committee. The committee shall consist of such
Directors or officers as the Board may from time to time appoint by resolution
passed by a majority of the whole Board.
Section 3. AUDITING AND EXAMINING COMMITTEE. The Auditing and Examining
Committee shall provide assistance to the Board in meeting its responsibilities
regarding the adequacy of internal controls, the quality and integrity of
regulatory and financial accounting and reporting and the effectiveness of
internal and external auditing of the Bank and its subsidiaries. The committee
shall take appropriate action to encourage free and open communication among the
Board, the independent accountants, and the officers of the Bank responsible for
internal audit, credit examination, regulatory and financial accounting and
reporting and the internal accounting controls of the Bank. In carrying out its
duties, the committee shall review reports of regulatory examinations of the
Bank, and management letters and other assessments of the adequacy of internal
accounting controls from the independent accountants and from the internal
auditors, together with any
Bank's Managing Committee and senior management as determined by the committee
from time to time.
The committee shall have all additional powers necessary to carry out its
responsibilities and such other duties as may be assigned by the Board from time
to time.
The committee shall consist of such Directors as the Board may from time to
time appoint by resolution passed by a majority of the whole Board.
No member of the committee shall be an active officer of the Bank or any of
its subsidiaries, and no member shall have any relationship that, in the opinion
of the Board, would interfere with the member's exercise of independent judgment
as a member of the committee.
In taking actions with respect to compensation of members of senior
management as determined from time to time by BankAmerica Corporation, the
committee shall take into account the recommendations of the Executive Personnel
and Compensation Committee of BankAmerica Corporation (BAC committee). If the
committee disagrees with any such recommendation, the committee shall consult
with the BAC committee before taking any action.
Section 5. NOMINATING COMMITTEE. The Nominating Committee shall recommend
to the Board criteria for the selection of candidates to serve on the Board;
evaluate all proposed candidates; recommend to the Board nominees to fill
vacancies on the Board; and recommend to the Board prior to the annual meeting
of shareholders a slate of nominees for election to the Board by the
shareholders of the Bank at the annual meeting.
The committee may also review and make recommendations to the Executive
Committee or the Board with respect to the Bank's overall compensation program
for Directors, including salary, perquisites, deferred compensation plans, stock
or stock option plans or other incentive plans, and retirement plans.
In carrying out its duties the committee shall seek possible candidates for
the Board and otherwise aid in attracting qualified candidates to the Board. The
committee shall be available to the Chairman of the Board or President and other
members of the Board for consultation concerning candidates for the Board. The
committee shall periodically review, assess and make recommendations to the
Board with regard to the size and composition of the Board. The committee shall
have all additional powers necessary to carry out its responsibilities and such
other duties as may be assigned by the Board from time to time.
The committee shall consist of such Directors as the Board may from time to
time appoint by resolution passed by a majority of the whole Board.
No member of the committee shall be an active officer of the Bank,
BankAmerica Corporation or any of their subsidiaries and no member shall have
may replace any absent or disqualified member at any meeting of the committee.
Any such committee shall have and may exercise such powers as may be specified
in the resolution creating such committee. Each committee shall have such name
as may be determined from time to time by the Board. The Board may change the
members of any committee, fill vacancies and discharge any committee, with or
without cause, at any time.
Section 9. MEETING REQUIREMENTS. The Board shall designate one member of
each committee to serve as chairman of the committee. Except as otherwise stated
in these By-laws or a resolution of the Board, a number equal to a majority of
the members of a committee shall be deemed to constitute a quorum for actions of
the committee. If a quorum is not present at any meeting of a committee, the
committee members present may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Except as otherwise stated in these By-laws or in a resolution of the Board, the
vote of a majority of the members of a committee present at a meeting at which a
quorum is present shall be necessary for action to be taken by the committee,
and each committee shall hold regular and special meetings at times and places
and upon notice as the committee may determine. In the absence of any other
notice requirements, meetings of a committee may be called by the chairman of
the committee or the Secretary, and must be called by the chairman of the
committee or the Secretary upon the request of any two members of the committee,
on at least 24 hours' notice to each committee member before the hour appointed
for holding such meeting. Notice shall be given personally, or by leaving the
notice at the member's place of business or residence, or by mailing the notice
in San Francisco or Los Angeles, with the postage thereon fully prepaid,
addressed to the member at his or her last known place of business or residence,
or by telegraphing or telecopying the notice to the member at his or her last
known place of business or residence. The method of notice of a special meeting
shall be entered in the minutes of the special meeting, and the approval of the
minutes at any subsequent meeting of the committee shall be conclusive upon the
question of service.
Section 10. ACTION BY WRITTEN CONSENT. Unless otherwise restricted by
these By-laws, any action required or permitted to be taken at any meeting of
any committee may be taken without a meeting, if all members of the committee
consent to the action in writing. The written consents shall be filed in the
minute book of the committee.
Section 11. TELEPHONE PARTICIPATION IN MEETINGS. Members of a committee may
participate in a meeting of the committee by means of conference telephone or
other communications equipment by means of which all persons participating can
hear each other, and such participation shall constitute presence in person at
the meeting.
Section 12. SUBCOMMITTEES. Except as otherwise stated in these By-laws or a
resolution of the Board, each committee may appoint and discharge subcommittees
and may delegate to such subcommittees any of the power and
of Directors, it shall be deemed advisable to have an Advisory Board for any
branch or group of branches of the Bank, the Board of Directors may appoint an
Advisory Board for such branch or group of branches, to be composed of such
persons and to consist of such number as the Board of Directors may appoint and
designate, and to have such rights and functions, and receive such compensation,
as may be fixed by the Board of Directors. The Board of Directors may by
resolution delegate the powers given it by this Section 3 of Article VI to the
Executive Committee, such powers, if so delegated to the Executive Committee, to
be exercised by it subject to the approval of the Board of Directors. Such
Advisory Boards and the members thereof shall serve at the pleasure of the Board
of Directors.
ARTICLE VII
OFFICERS
Section 1. NUMBER AND TITLES. The officers of the Bank may be, and to the
extent required by law shall include: a Chairman of the Board, a President, one
or more Vice Chairmen of the Board, one or more Vice Chairmen, one or more Group
Executive Vice Presidents, one or more Executive Vice Presidents, one or more
Senior Vice Presidents, one or more Regional Vice Presidents, one or more Vice
Presidents, one or more Assistant Vice Presidents, a Cashier, one or more
Assistant Cashiers, a Secretary, one or more Assistant Secretaries, a Treasurer,
one or more Assistant Treasurers, and such other officers as the Board may from
time to time by resolution create (the officer titles referenced in such
resolutions being deemed included in these By-laws and incorporated herein by
reference as though set forth fully herein), or as may be appointed in
accordance with Section 2 of this Article. The persons with officer titles
listed above or referenced in the resolutions referred to above, or titles
created in accordance with Section 2 of this Article and referenced in the
resolutions referred to above or listed above, shall be officers of the Bank.
The Secretary or the executive officer of the Bank's human resources or
personnel function or the delegates of either shall maintain or cause to be
maintained a current list of authorized officer titles. The Board of Directors
shall approve the list of authorized officer titles at least annually.
The Board of Directors shall designate one officer of the Bank as the Chief
Executive Officer and may in its discretion confer additional functional titles,
including but not limited to Chief Operating Officer and Chief Financial
Officer. The President shall be a member of the Board of Directors.
Section 2. APPOINTMENT, TERM OF OFFICE. The officers shall be appointed by
the Board of Directors and shall hold office at the pleasure of the Board.
Nothwithstanding anything to the contrary in these By-laws contained, the
Chairman of the Board, the President, any Vice Chairman of the
may designate one such Vice Chairman of the Board as Senior Vice Chairman of the
Board.
Section 7. THE PRESIDENT. The President shall have such duties and
authority as are set forth in these By-laws or may be assigned by the Board of
Directors or by the Chairman of the Board.
Section 8. THE VICE CHAIRMEN. The Board of Directors may appoint one or
more Vice Chairmen. Each Vice Chairman shall have such duties and authority as
may be assigned by the Board of Directors or by the officer to whom such Vice
Chairman reports.
Section 9. THE VICE PRESIDENTS. The Board of Directors may appoint one or
more Vice Presidents. The Board of Directors may create categories of Vice
Presidents, including but not limited to Group Executive Vice Presidents,
Executive Vice Presidents, Senior Vice Presidents, Regional Vice Presidents and
Assistant Vice Presidents. The Board of Directors, the Chairman of the Board or
the President may designate seniority of ranking among categories of Vice
Presidents. Each Vice President shall have such duties and authority as may be
assigned by the Board of Directors or by the officer to whom such Vice President
reports.
Section 10. THE SECRETARY. The Secretary shall have charge and custody of
the corporate seal, records and Minute Books of the Bank, shall keep correct
written minutes of all meetings of shareholders and Directors, and shall give or
cause, to be given notice of all meetings of the shareholders and of the Board
of Directors in accordance with these By-laws and as required by law. The
duties of the Secretary may be performed by any Assistant Secretary.
Section 11. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall have general executive supervision of the business and affairs of the
Bank.
Section 12. THE CHIEF OPERATING OFFICER. The Chief Operating Officer
shall have such duties and authority as may be assigned by the Chief Executive
Officer to whom the Chief Operating Officer shall report.
Section 13. THE CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall be the principal financial officer of the Bank.
ARTICLE VIII
CAPITAL STOCK--CERTIFICATES OF STOCK
Section 1. CERTIFICATES, TRANSFER AGENTS AND REGISTRARS. Every holder of
stock in the Bank shall be entitled to have a certificate, signed
the capital stock, subject to the provisions of the Article of Association and
the national banking laws.
ARTICLE IX
INDEMNIFICATION
Section 1. RIGHT TO INDEMNIFICATION. Except as provided in Section 4,
below, each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that such person, or another person of whom such person is
the legal representative, is or was a Director, officer, or employee of the Bank
or is or was serving at the request of the Bank as a director, officer, or
employee of, or in some other representative capacity for, another corporation
or a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a Director, officer, or employee or
in any other capacity while serving as a Director, officer, or employee, shall
be indemnified and held harmless by the Bank to the fullest extent authorized by
the Delaware General Corporation Law, as the same exists or may hereafter be
amended, against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a Director, officer, or employee and shall inure to the benefit of such
person's heirs, executors and administrators; provided, however, that except as
-------- -------
provided in Section 2 hereof with respect to proceedings seeking to enforce
rights to indemnification, the Bank shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Bank. The right to indemnification conferred in this
Article shall be a contract right and shall include the right to be paid by the
Bank the expenses incurred in defending any such proceeding in advance of its
final disposition; provided, however, that, if the Delaware General Corporation
-------- -------
Law so requires, the payment of such expenses incurred by a Director of officer
in such person's capacity as a Director or officer (and not in any other
capacity in which service was or is rendered by such person while a Director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Bank of an undertaking, by or on behalf of such Director or
officer, to repay all amounts so advanced if it shall ultimately be determined
that such Director or officer is not entitled to be indemnified under this
Article or otherwise.
Section 2. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section 1 of
this Article is not paid in full by the Bank within ninety days
ARTICLE X
EMERGENCY
Section 1. APPLICATION. This Article shall operate during any emergency
resulting from any disaster or other emergency condition when a quorum of the
Board of Directors or a Board committee cannot readily be convened.
Section 2. MEETINGS OF BOARD OR COMMITTEE. A meeting of the Board of
Directors or Board committee may be called by any officer or Director by giving
notice to the Directors or committee members who can be reached by any means the
person calling the meeting deems feasible.
Section 3. CONDUCT OF BUSINESS. During any emergency, the quorum
requirements for all meetings of the Board of Directors and any Board committee
shall be one-fourth of the members.
(a) If no Board of Directors meeting can be held because a quorum cannot
be assemble, then those Directors who can assemble may, by majority vote, reduce
the Board of Directors to not less than five Directors and may elect emergency
Directors.
(b) If only one Director can be found, than that Director may appoint
emergency Directors.
(c) If no Director can be found, then the Chief Executive Officer or Acting
Chief Executive Officer may appoint emergency Directors.
Section 4. SUCCESSION. During any emergency when the Chief Executive
Officer becomes incapacitated, cannot be located, or otherwise is unable to
perform his or her duties, succession to the powers of the Chief Executive
Officer as Acting Chief Executive Officer shall occur in the following order:
Chairman of the Board,
President,
Vice Chairman of the Board,
Vice Chairman,
any member of Managing Committee,
Cashier.
Priority within rank shall be set by seniority in the ranking office. If
seniority in office dates from the same day, then seniority based on total
length of service shall be determinative.
Section 2. CONVEYANCE OF REAL PROPERTY, TRANSFER OF PERSONAL PROPERTY, AND
EXECUTION AND DELIVERY OF DEEDS, LEASES, CONTRACTS, ETC. Authority to convey
real property, transfer personal property, sign, execute and deliver deeds,
leases, contracts, notes, negotiable instruments, agreements and all other
written instruments and documents for and on behalf of the Bank, other than as
set forth in these By-laws or as prescribed by law, shall be prescribed by
resolutions adopted by the Board of Directors of the Bank from time to time.
Section 3. SEAL. In the execution on behalf of the Bank of any instrument,
document, writing, notice or paper, it shall not be necessary to affix the
corporate seal of the Bank thereon, and any such instrument, document, writing,
notice or paper when executed without said seal affixed thereon shall be of the
same force and effect and as binding on the Bank as if said corporate seal had
been affixed thereon in each instance.
Section 4. WAIVER OF NOTICE. Whenever any notice whatever is required to
be given by law or by these By-laws or the Articles of Association, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
Section 5. AMENDMENTS. These By-laws may be altered or repealed at any
regular meeting of the shareholders or of the Board of Directors or at any
special meeting of the shareholders or of the Board of Directors if notice of
such alteration or repeal be contained in the notice of such special meeting.
Section 6. FISCAL YEAR. The fiscal year of the Bank shall be the calendar
year.
CERTIFICATION
I, Cheryl Sorokin, Secretary of Bank of America National Trust and Savings
Association, a national banking association organized and existing under and by
virtue of the laws of the United States of America and having its principal
place of business in the City and County of San Francisco in the State of
California, certify that the foregoing pages 1 to 3 inclusive constitute a true
and correct copy of the Articles of Association of Bank of America National
Trust and Savings Association, as amended and as they now exist, and that the
foregoing pages 4 to 23 inclusive constitute a true and correct copy of the
Bylaws of Bank of America National Trust and Savings Association, as amended and
as they now exist.
Dated: September 9, 1994
-------------------
/s/ Cheryl Sorokin
------------------------------------------
Secretary
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
EXHIBIT I
Legal Title of Bank: Bank of America, NT & SA Call Date: 6/30/95 ST-BK:
Address: P.O. BOX 3700 06-1400 FFIEC 031
City, State Zip: San Francisco, CA 94137 Page RC-1
FDIC Certificate No.: /0/3/5/1/0/
-----------
Consolidated Report of Condition for Insured Commercial
and State - Chartered Savings Banks for June 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC -- Balance Sheet
--------------
C400
---------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
--------------------------------------------------------------------------------------------------------------------------------
ASSETS //////////////////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): //////////////////////////////
a. Noninterest-bearing balances and currency and coin (1).................................. 0081 8,197,000 1.a.
b. Interest-bearing balances (2) .......................................................... 0071 7,529,000 1.b.
2. Securities: //////////////////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).............................. 1754 3,312,000 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............................ 1773 5,191,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell in domestic offices //////////////////////////////
of the bank and of its Edge and Agreement subsidiaries, and in IBFs: //////////////////////////////
a. Federal funds sold...................................................................... 0276 3,100,000 3.a.
b. Securities purchased under agreements to resell......................................... 0277 1,377,000 3.b.
4. Loans and lease financing receivables: ---------------------- //////////////////////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 107,971,000 ////////////////////////////// 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 2,343,OOO ////////////////////////////// 4.b.
c. LESS: Allocated transfer risk reserve.......................... RCFD 3128 0 ///////////////////////////// 4.c.
d. Loans and leases, net of unearned income, ---------------------- /////////////////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c)..................................... 2125 105,628,000 4.d.
5. Trading assets (from Schedule RC-D)........................................................ 3545 14,243,000 5.
6. Premises and fixed assets (including capitalized Leases)................................... 2145 2,725,000 6.
7. Other real estate owned (from Schedule RC-M)............................................... 2150 341,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)... 2130 180,000 8.
9. Customers' liability to this bank on acceptances outstanding............................... 2155 1,960,000 9.
10. Intangible assets (from Schedule RC-M)..................................................... 2143 2,278,000 10.
11. Other assets (from Schedule RC-F).......................................................... 2160 6,516,000 11.
12. Total assets (sum of items 1 through 11)................................................... 2170 162,577,000 12.
---------------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
11
Legal Title of Bank: Bank of America, NT & SA Call Date: 6/30/95 ST-BK:
Address: P.O. BOX 3700 06-1400 FFIEC 031
City, State Zip: San Francisco, CA 94137 Page RC-2
FDIC Certificate No.: /0/3/5/1/0/
-----------
Schedule RC -- Continued
-------------------------
Dollar Amounts in Thousands ////////// Bil Mil Thou
------------------------------------------------------------------------------------------------------------------------
LIABILITIES /////////////////////////
13. Deposits: /////////////////////////
a. In domestic offices (sum of totals of columns A and C from /////////////////////////
Schedule RC-E, part I) .............................................................. RCON 2200 77,671,000 13.a.
--------------------------
(1) Noninterest-bearing(1) .............................. RCON 6631 24,594,000 ///////////////////////// 13.a.(1)
(2) Interest-bearing .................................... RCON 6636 53,077,000 ///////////////////////// 13.a.(2)
--------------------------
b. In foreign offices, Edge and Agreement subsidiaries, and /////////////////////////
IBFs (from Schedule RC-E, part II ................................................... RCFN 2200 40,199,000 13.b.
--------------------------
(1) Noninterest-bearing ................................. RCFN 6631 1,783,000 ///////////////////////// 13.b.(1)
(2) Interest-bearing .................................... RCFN 6636 38,416,000 ///////////////////////// 13.b.(2)
--------------------------
14. Federal funds purchased and securities sold under agreements to repurchase in domestic /////////////////////////
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: /////////////////////////
a. Federal funds purchased ............................................................. RCFD 0278 2,709,000 14.a.
b. Securities sold under agreements to repurchase ...................................... RCFD 0279 203,000 14.b.
15. a. Demand notes issued to the U.S. Treasury ............................................ RCON 2840 1,000 15.a.
b. Trading liabilities (from Schedule RC-D) ............................................ RCFD 3548 10,931,000 15.b.
16. Other borrowed money: /////////////////////////
a. With original maturity of one year or less .......................................... RCFD 2332 6,561,000 16.a.
b. With original maturity of more than one year ........................................ RCFD 2333 453,000 16.b.
17. Mortgage indebtedness and obligations under capitalized lease .......................... RCFD 2910 33,000 17.
18. Bank's liability on acceptances executed and outstanding ............................... RFCD 2920 1,960,000 18.
19. Subordinated notes and debentures ...................................................... RCFD 3200 4,151,000 19.
20. Other liabilities (from Schedule RC-G) ................................................. RCFD 2930 6,156,000 20.
21. Total liabilities (sum of items 13 through 20) ......................................... RCFD 2948 151,028,000 21.
/////////////////////////
22. Limited-life preferred stock and related surplus ....................................... RCFD 3282 0 22.
EQUITY CAPITAL /////////////////////////
23. Perpetual preferred stock and related surplus .......................................... RCFD 3838 0 23.
24. Common stock ........................................................................... RCFD 3230 601,000 24.
25. Surplus (exclude all surplus related to preferred stock) ............................... RCFD 3839 5,345,000 25.
26. a. Undivided profits and capital reserves .............................................. RCFD 3632 5,729,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities .............. RCFD 8434 (80,000) 26.b
27. Cumulative foreign currency translation adjustments .................................... RCFD 3284 (46,000) 27.
28. Total equity capital (sum of items 23 through 27) ...................................... RCFD 3210 11,549,000 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21,22, /////////////////////////
and 28) ................................................................................ RCFD 3300 162,577,000 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing Number
work performed for the bank by independent external ------------------
auditors as of any data during 1994.................. RCFD 6724 N/A M.1.
------------------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
---------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
12