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As filed with the Securities and Exchange Commission on October 23, 2007
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Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Silverleaf Resorts, Inc.
(Exact Name of Registrant Specified in its Charter)
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Texas
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75-2259890
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(State or other jurisdiction of incorporation)
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(I.R.S. Employer Identification No.)
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1221 River Bend Drive
Suite 120
Dallas, TX 75247
(214) 631-1166
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrants Principal Executive Offices)
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Copy to:
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Robert E. Mead
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Chief Executive Officer
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David N. Reed
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Silverleaf Resorts, Inc.
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Meadows, Collier, Reed,
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1221 River Bend Drive, Suite 120
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Cousins & Blau, L.L.P.
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Dallas, TX 75247
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901 Main Street, Suite 3700
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(214) 631-1166
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Dallas, TX 75202
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(Name, address, including zip code, and
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(214) 744-3700
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telephone number, including area code,
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of agent for service)
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Approximate date of commencement of proposed sale to the public:
From time to time after this
registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box.
o
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, as amended, other than
securities offered only in connection with dividend or interest reinvestment plans, check the
following box.
þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
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If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box.
o
CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Offering
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Aggregate
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Amount of
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Amount to Be
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Price
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Offering
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Registration
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Title of Each Class of Securities to be Registered (1)
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Registered
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Per Unit
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Price (1)
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Fee (2)
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Debt securities, common stock, preferred stock and
warrants to purchase common stock or
preferred stock (3)
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$100,000,000
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¾
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¾
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$3,070
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Total
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$100,000,000
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¾
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¾
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$3,070
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(1)
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Not specified as to each class of securities to be registered pursuant to General Instruction II.D to Form S-3 under the Securities Act.
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(2)
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The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act.
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(3)
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Includes an indeterminate number of securities that may be issued in primary offerings or upon exercise, conversion or exchange of any securities registered hereunder that provide for exercise, conversion or exchange.
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Proposed
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Proposed
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Maximum
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Maximum
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Offering
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Aggregate
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Amount of
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Amount to Be
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Price Per
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Offering
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Registration
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Title of Each Class of Securities to be Registered
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Registered (1)
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Share (2)
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Price (2)
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Fee
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Common stock to be sold by the selling shareholder
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9,349,417 shares
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$5.78
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$54,039,630
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$1,659
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Total
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9,349,417 shares
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$5.78
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$54,039,630
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$1,659
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(1)
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In the event of a stock split, stock dividend, or similar transaction involving the common stock, in order to prevent dilution, the number of shares registered shall be automatically increased to cover additional shares in
accordance with Rule 416(a) of the Securities Act.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) under the Securities Act based on the average of the high and low reported sales prices on the Nasdaq Capital Market on
October 18, 2007.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE
NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION
8(a)
OF THE SECURITIES ACT
OR
UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION
8(a)
, MAY DETERMINE.
The information contained in this prospectus is not complete and may be changed. Neither we nor the
selling shareholder may sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 23, 2007
PROSPECTUS
Silverleaf Resorts, Inc.
Debt Securities, Common Stock,
Preferred Stock and Warrants
9,349,417 Shares
Common Stock
We may from time to time sell any combination of debt securities, preferred stock, common
stock and warrants described in this prospectus in one or more offerings. The aggregate initial
offering price of all securities sold by the Company under this prospectus will not exceed
$100,000,000.
Robert E. Mead, as
voting trustee of shares beneficially owned by him, or the voting trusts
pledgees, donees, transferees, assignees or other successors-in-interest that receive the voting
trusts shares in a non-sale transfer, may sell up to 9,349,417 shares of our common stock as
selling shareholder under this prospectus and any prospectus supplement, from time to time, in one
or more offerings. We will not receive any proceeds from such sales.
This prospectus provides a general description of the securities we may offer. Each time we or
the selling shareholder sells securities, we will provide specific terms of the securities offered
in a supplement to this prospectus. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read this prospectus and the applicable
prospectus supplement carefully before you invest in any securities. This prospectus may not be
used to consummate a sale of securities unless accompanied by the applicable prospectus supplement.
We or the selling shareholder will sell these securities directly to our shareholders or to
purchasers or through agents on our behalf or through underwriters or dealers as designated from
time to time. If any agents or underwriters are involved in the sale of any of these securities,
the applicable prospectus supplement will provide the names of the agents or underwriters and any
applicable fees, commissions or discounts.
Our common stock is traded on the Nasdaq Capital Market under the symbol SVLF. On October
18, 2007, the closing price of our common stock was $5.95.
Investing in our securities involves a high degree of risk. Risks associated with an
investment in our securities will be described in the applicable prospectus supplement and certain
of our filings with the Securities and Exchange Commission, as described in Risk Factors on page
5.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the accuracy or adequacy of the
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2007.
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TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with the Securities and
Exchange Commission utilizing a shelf registration process. Under this shelf registration
process, we may sell any combination of the securities described in this prospectus in one or more
offerings up to a total dollar amount of $100,000,000, and the selling shareholder may sell shares
of common stock. This prospectus provides you with a general description of the securities we and
the selling shareholder may offer. Each time we or the selling
shareholder sells securities under
this shelf registration, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the next heading Where
You Can Find More Information.
The descriptions of the securities contained in this prospectus, together with the applicable
prospectus supplements, summarize the material terms and provisions of the various types of
securities that we may offer. We will describe in the applicable prospectus supplement relating to
any securities the particular terms of the securities offered by that prospectus supplement. If we
indicate in the applicable prospectus supplement, the terms of the securities may differ from the
terms we have summarized below. We will also include in the prospectus supplement information,
where applicable, about material United States federal income tax considerations relating to the
securities, and the securities exchange, if any, on which the securities will be listed.
We may sell from time to time, in one or more offerings:
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common stock;
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preferred stock;
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warrants to purchase any of the securities listed above; and
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debt securities.
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In this prospectus, we will refer to the common stock, preferred stock, debt securities and
warrants collectively as securities.
If we issue debt securities at a discount from their original stated principal amount, then,
for purposes of calculating the total dollar amount of all securities issued under this prospectus,
we will treat the initial offering price of the debt securities as the total original principal
amount of the debt securities.
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This prospectus may not be used to consummate a sale of securities by us unless it is
accompanied by a prospectus supplement. This prospectus may not be used to consummate sales by the
selling shareholder unless it is accompanied by a prospectus supplement.
We have not authorized any dealer, salesman or other person to give any information or to make
any representation other than those contained or incorporated by reference in this prospectus and
any accompanying supplement to this prospectus. You must not rely upon any information or
representation not contained or incorporated by reference in this prospectus or such accompanying
prospectus supplement. This prospectus and any accompanying supplement to this prospectus do not
constitute an offer to sell or the solicitation of an offer to buy any securities other than the
registered securities to which they relate, nor do this prospectus and any accompanying supplement
to this prospectus constitute an offer to sell or the solicitation of an offer to buy securities in
any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such
jurisdiction. You should not assume that the information contained in this prospectus or any
accompanying prospectus supplement is accurate on any date subsequent to the date set forth on the
front of the document or that any information we have incorporated by reference is correct on any
date subsequent to the date of the document incorporated by reference, even though this prospectus
and any accompanying prospectus supplement is delivered or securities sold on a later date.
ABOUT SILVERLEAF
Silverleaf Resorts, Inc. was incorporated in Texas in 1989. Our principal business is the
development, marketing, and operation of getaway and destination timeshare resorts. As of
December 31, 2006, we own seven getaway resorts in Texas, Missouri, Illinois, and Georgia (the
Getaway Resorts). We also own six destination resorts in Texas, Missouri, Massachusetts, and
Florida (the Destination Resorts). We also own Pinnacle Lodge, a hotel property located near the
Winter Park recreational area in Colorado which provides our owners with another destination
vacation alternative and gives us an entry point into this increasingly popular destination area.
The Getaway Resorts are designed to appeal to vacationers seeking comfortable and affordable
accommodations in locations convenient to their residences and are located near major metropolitan
areas. Our Getaway Resorts are located close to principal areas where we market our vacation
products to facilitate more frequent short-stay getaways. We believe such short-stay getaways
are growing in popularity as a vacation trend. Our Destination Resorts are located in or near areas
with national tourist appeal and offer our customers the opportunity to upgrade into a more upscale
resort area as their lifestyles and travel budgets permit. Both the Getaway Resorts and the
Destination Resorts (collectively, the Existing Resorts) provide a quiet, relaxing vacation
environment. We believe our resorts offer our customers an economical alternative to commercial
vacation lodging. The average price for an annual one-week vacation ownership interval (Vacation
Interval) for a two-bedroom unit at the Existing Resorts was $11,681 for 2006 and $11,124 for
2005.
Owners of Silverleaf Vacation Intervals at the Existing Resorts (Silverleaf Owners) enjoy
certain distinct benefits. These benefits include (i) use of vacant lodging facilities at the
Existing Resorts through our Bonus Time Program; (ii) year-round access to the Existing Resorts
non-lodging amenities such as fishing, boating, horseback riding, swimming, tennis, or golf on a
daily basis for little or no additional charge; and (iii) the right to exchange the use of a
Vacation Interval at one of our Existing Resorts for a different time period at a different
Existing Resort through our internal exchange program. These benefits are subject to availability
and other limitations. Most Silverleaf Owners may also enroll in the Vacation Interval exchange
network operated by Resort Condominiums International (RCI). Our destination resort in Florida is
not under contract with RCI; however at October 23, 2007, it is under contract with Interval
International, Inc., a competitor of RCI.
Each timeshare resort has a timeshare owners association (a Club). At December 31, 2006,
each Club (other than the club at Orlando Breeze) operates through a centralized organization to
manage the resorts on a collective basis. This centralized organization is Silverleaf Club, a Texas
not-for-profit corporation. Silverleaf Club is under contract with each Club for each of the
Existing Resorts (with the exception of Orlando Breeze) to operate and manage its resort. In turn,
we have a contract (Management Agreement) with Silverleaf Club, under which we perform the
supervisory and management functions of the resorts on a collective basis. All costs of operating
the timeshare resorts, including management fees payable to us under the Management Agreement, are
to be covered by monthly dues paid by the
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timeshare owners to their respective Clubs as well as income generated by the operation of certain
amenities at the timeshare resorts.
Orlando Breeze has its own club (Orlando Breeze Resort Club), which is operated
independently of Silverleaf Club. We also provide certain supervisory and management functions for
Orlando Breeze Resort Club under the terms of a written agreement.
Silverleaf is a Texas corporation, and our principal executive offices are located at 1221
River Bend Drive, Suite 120, Dallas, Texas 75247. Our telephone number is (214) 631-1166.
For additional information relating to our business, operations, properties and other matters,
see the documents referred to in this prospectus under the section entitled Where You Can Find
More Information and the information we incorporate by reference in this prospectus listed in the
section entitled Incorporation of Certain Documents by Reference.
In this prospectus, Silverleaf Resorts, Inc., Silverleaf, the Company, the Registrant,
we, us, or our refer to Silverleaf Resorts, Inc. and it subsidiaries.
RISK FACTORS
You should carefully consider the specific risks set forth under the caption Risk Factors in
the applicable prospectus supplement and under the caption Risk
Factors in our Annual Report on form 10-K for the year ended
December 31, 2006 and in any of our other filings
with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, as amended (the Exchange Act), incorporated by reference herein, before making an
investment decision. For more information, see Where You Can Find More Information.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference into this prospectus contain
forward-looking statements that are based on current expectations, estimates and projections about
our industry, managements beliefs, and assumptions made by management. Words such as
anticipates, expects, intends, plans, believes, seeks, estimates, and variations of
such words and similar expressions are intended to identify such forward-looking statements. These
statements are not guarantees of future performance and are subject to certain risks, uncertainties
and assumptions that are difficult to predict; therefore, actual results may differ materially from
those expressed or forecasted in any forward-looking statements. The risks and uncertainties
include those noted in Risk Factors above and in the documents incorporated by reference. We
undertake no obligation to update publicly any forward-looking statements, whether as a result of
new information, future events or otherwise.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the dollar amount of the coverage of our earnings over our
fixed charges. We have not included a ratio of earnings to combined fixed charges and preferred
stock dividends because we do not have any preferred stock outstanding.
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Six Months
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Ended
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Year Ended December 31,
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June 30, 2007
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2006
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2005
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2004
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2003
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2002
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Ratio of earnings
to fixed charges
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2.70x
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2.56x
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2.63x
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1.69x
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0.15x
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1.88x
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The ratio of earnings to fixed charges is computed by dividing the sum of income or loss from
continuing operations before provision for income taxes, which does not include any income or loss
from equity investees, plus fixed charges by fixed charges. Fixed charges consist of interest
expense, including amortization of debt issuance costs and premiums, and that portion of rental
payments under operating leases we believe to be representative of interest expense.
USE OF PROCEEDS
Unless otherwise provided in the applicable prospectus supplement, we intend to use the net
proceeds from the sale of the securities under this prospectus for general corporate purposes,
which may include increasing our working capital, reducing indebtedness, acquisitions or
investments in our businesses, and capital expenditures. We will set forth in a prospectus
supplement our intended use for the net proceeds received from the sale of any securities. Pending
the application of the net proceeds, we intend to invest the net proceeds in short-term,
investment-grade, interest-bearing securities.
We will not receive any proceeds from the sale of common stock being offered by the selling
shareholder.
PLAN OF DISTRIBUTION
Sales by the Company
We may sell the securities from time to time pursuant to underwritten public offerings,
negotiated transactions, block trades or a combination of these methods. We may sell the securities
(1) through underwriters or dealers, (2) through agents and/or (3) directly to one or more
purchasers. We may distribute the securities from time to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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at negotiated prices.
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We may solicit directly offers to purchase the securities being offered by this prospectus. We
may also designate agents to solicit offers to purchase the securities from time to time. We will
name in a prospectus supplement any agent involved in the offer or sale of our securities.
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If we utilize a dealer in the sale of the securities being offered by this prospectus, we will
sell the securities to the dealer, as principal. The dealer may then resell the securities to the
public at varying prices to be determined by the dealer at the time of resale.
If underwriters are used in the sale of any shares, the shares may be acquired by the
underwriters for their own account and then be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering price or at varying
prices determined at the time of sale. The shares may be either offered to the public through
underwriting syndicates represented by managing underwriters, or directly by underwriters.
Generally, the underwriters obligations to purchase the shares will be subject to certain
conditions precedent. The underwriters will be obligated to purchase all of the shares if they
purchase any of the shares (other than any shares purchased upon exercise of any option to purchase
additional shares).
Sales by the Selling Shareholder
The selling shareholder may offer and sell shares offered by this prospectus from time to time
and may also decide not to sell any or all of the shares it is allowed to sell under this
prospectus. The selling shareholder may sell any or all of the shares covered hereby on any stock
exchange, market or trading facility on which our shares are traded, including The NASDAQ Capital
Market, or in private transactions. The selling shareholder may use one or more of the following
methods when selling shares:
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privately-negotiated transactions;
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ordinary brokerage transaction in which a broker-dealer solicits purchasers;
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brokerage transactions in which a broker-dealer sells shares
in the open market according to parameters defined by the selling
shareholder in a pre-arranged trading plan;
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block trades in which the broker-dealer will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its
own account;
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a combination of any of the above methods; or
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any other method permitted by applicable law.
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The selling shareholder may sell at market prices at the time of the sale, at prices related
to the market price or at negotiated prices. The selling shareholder will act independently of us
in making the decisions with respect to the timing, manner of sale and number of shares to be
sold. The selling shareholder may also sell shares under Rule 144 of the Securities Act of 1933,
as amended.
Sales
by the Company or the Selling Shareholder
We and the selling shareholder may sell the shares through agents from time to time. The
applicable prospectus supplement will name any agent involved in the offer or sale of the shares
and any commissions paid to them. Generally, any agent will be acting on a best efforts basis for
the period of its appointment. In addition, we or the selling shareholder may enter into
derivative, sale or forward sale transactions with third parties, or sell securities not covered by
this prospectus to third parties in privately negotiated transactions. If the applicable prospectus
supplement indicates, in connection with such transaction, the third parties may, pursuant to this
prospectus and the applicable prospectus supplement, sell securities covered by this prospectus and
the applicable prospectus supplement, including in short sale transactions. If so, the third party
may use securities borrowed from us or others to settle such sales and may use securities received
from us, the selling shareholder or others to settle those sales to close out any related short
positions. The third party in such sale transactions will be an underwriter and will be identified
in the applicable prospectus supplement (or a post-effective amendment). We and the selling
shareholder may also loan or pledge securities covered by this prospectus and the applicable
prospectus supplement to third parties, who may sell the loaned securities or, in an event of
default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the
applicable prospectus supplement.
The selling shareholder, underwriters, broker-dealers and agents that participate in the
distribution of the shares will be deemed to be underwriters as defined by the Securities Act.
Any commissions paid or any discounts or
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concessions allowed to any such persons, and any profits they receive on resale of the shares,
may be deemed to be underwriting discounts and commissions under the Securities Act. Additionally,
because the selling shareholder may be deemed to be an underwriter within the meaning of
Section 2(a)(11) of the Securities Act, the selling shareholder may be subject to the prospectus
delivery requirements of the Securities Act.
We have agreed to indemnify the selling shareholder for any loss, liability, claim, damage and
expense incurred, arising out of any untrue statement or alleged untrue statement of a material
fact contained in a registration statement or prospectus pursuant to which the shares are
registered or offered under the Securities Act, the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or prospectus, including all documents incorporated therein
by reference. The foregoing indemnity shall not apply, however, to any loss, liability, claim,
damage or expense which arise out of any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written information furnished to us by the
selling shareholder expressly for use in the registration statement. The selling shareholder shall
indemnify us for any loss, claim damage or expense that arises out of or is based upon, any untrue
statement omissions made in the registration statement or a prospectus in reliance upon and in
conformity with written information furnished to us by the selling shareholder, or the selling
shareholders failure to deliver an amended or supplemental prospectus if such loss, liability,
claim, damage or expense would not have arisen had such delivery occurred.
Agents, underwriters, and dealers may be entitled under relevant agreements with us or the
selling shareholder to indemnification by us against certain liabilities, including liabilities
under the Securities Act, or to contribution with respect to payments which such agents,
underwriters and dealers may be required to make in respect thereof. The terms and conditions of
any indemnification or contribution will be described in the applicable prospectus supplement.
We will pay any or all expenses incurred with respect to the registration of the shares of
common stock owned by the selling shareholder, other than underwriting fees, discounts or
commissions, which will be borne by the selling shareholder.
Underwriters, broker-dealers or agents may receive compensation in the form of commissions,
discounts or concessions from us or the selling shareholder. Underwriters, broker-dealers or agents
may also receive compensation from the purchasers of shares for whom they act as agents or to whom
they sell as principals, or both. Compensation as to a particular underwriter, broker-dealer or
agent might be in excess of customary commissions and will be in amounts to be negotiated in
connection with transactions involving shares. In effecting sales, broker-dealers engaged by us or
the selling shareholder may arrange for other broker-dealers to participate in the resales. Maximum
compensation to any underwriters, dealers or agents will not exceed any applicable NASD
limitations.
Underwriters or agents may purchase and sell the shares in the open market. These transactions
may include over-allotments, stabilizing transactions, syndicate covering transactions and penalty
bids. Over-allotments involve sales in excess of the offering size, which creates a short position.
Stabilizing transactions consist of bids or purchases for the purpose of preventing or retarding a
decline in the market price of the shares and are permitted so long as the stabilizing bids do not
exceed a specified maximum. Syndicate covering transactions involve the placing of any bid on
behalf of the underwriting syndicate or the effecting of any purchase to reduce a short position
created in connection with an offering. The underwriters or agents also may impose a penalty bid,
which permits them to reclaim selling concessions allowed to syndicate members or certain dealers
if they repurchase the shares in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the shares, which may be higher than
the price that might otherwise prevail in the open market. These activities, if begun, may be
discontinued at any time. These transactions may be effected on any exchange on which the shares
are traded, in the over-the-counter market or otherwise.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Silverleaf with the Commission are incorporated by reference
in and made a part of this prospectus:
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Silverleafs Annual Report on Form 10-K for the fiscal year ended December 31, 2006
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Silverleafs Quarterly Reports on Form 10-Q for the quarters ended March 31, 2007
and June 30, 2007
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Silverleafs Current Reports on Form 8-K filed with the Commission on February 15,
2007, February 27, 2007, March 12, 2007, September 14, 2007, and October 4, 2007
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Silverleafs Definitive Proxy Statement filed with the Commission on April 5, 2007
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All documents that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, on or after the date of this prospectus and prior to the termination of the offering
made pursuant to this prospectus also will be deemed to be incorporated herein by reference and
will automatically update and supersede information in this prospectus. Nothing in this prospectus
shall be deemed to incorporate information furnished to but not filed with the SEC pursuant to Item
2.02 or Item 7.01 of Form 8-K (or corresponding information furnished under Item 9.01 or included
as an exhibit).
You may request a copy of these filings, at no cost, by writing or telephoning us at the
following address:
Silverleaf Resorts, Inc.
Attn: Corporate Secretary
1221 River Bend Drive, Suite 120
Dallas, Texas 75247
Tel : (214) 631-1166
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and other reports, proxy statements and other information with the
SEC. You can read and copy any document we file at the public reference facilities of the
Commission at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Please call the Commission at
1-800-SEC-0330 for further information on the operation of the public reference rooms. Our
Commission filings are also available to the public at the SECs website at
www.sec.gov
and at our
website at
www.silverleafresorts.com
. Information contained on our website shall not be deemed to be
incorporated by reference in to this prospectus, or in to any prospectus supplement.
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC.
Certain information in the registration statement has been omitted from this prospectus in
accordance with the rules and regulations of the SEC. We have also filed exhibits and schedules to
the registration statement that are excluded from this prospectus. For further information you
may:
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read a copy of the registration statement, including the exhibits and schedules,
without charge at the SECs public reference rooms;
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view a copy on the Commissions website; or
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obtain a copy from the Commission upon payment of the fees prescribed by the SEC.
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SELLING SHAREHOLDER
All of the shares offered by the selling shareholder are held of record by Robert E. Mead, as
Trustee of the Robert E. Mead Voting Trust established under a Voting Trust Agreement dated
November 1, 1999 between Robert E. Mead and his wife, Judith F. Mead. While Mr. Mead has always
held the sole power to vote and dispose of these shares, the shares are the community property of
Mr. Mead and his wife. As the sole voting trustee designated under the voting trust agreement, Mr.
Mead continues to have the sole power to vote and dispose of all or a portion of the shares subject
to the voting trust. Mr. Mead is our chairman and chief executive officer.
The following table sets forth the number of shares of our common stock owned by the selling
shareholder as of the date hereof, the number of shares of common stock that will be beneficially
owned by the selling shareholder after the completion of this offering assuming the sale of all
shares offered and no other changes in beneficial ownership, the percentage of Silverleaf common
stock owned by the selling shareholder as of the date hereof, and the percentage of Silverleaf
common stock after the completion of the offering, assuming the sale of all shares offered
hereunder and no
9
other changes in beneficial ownership or in the number of Silverleaf shares outstanding. The
information below is based upon information supplied by the selling shareholder.
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Percentage of
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Percentage of
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Number of Shares
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Silverleaf Common
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Silverleaf Common
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Number of Shares
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Owned after
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Stock Currently
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Stock Owned after
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Selling
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Owned by the
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Completion of the
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owned by the Selling
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Completion of the
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Shareholder
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Selling Shareholder (1)
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Offering (2)
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Shareholder(3)
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Offering (2)
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Robert E. Mead,
Trustee (4)
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9,349,417
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0
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24.72
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%
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0
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%
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(1)
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Based upon information available as of October 23, 2007.
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(2)
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Assumes the sale by the selling shareholder of all shares of common stock offered by this
prospectus.
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(3)
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Based upon 37,818,154 shares outstanding at October 23, 2007.
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(4)
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The address of the selling shareholder is 1221 River Bend Drive, Suite 120, Dallas, Texas
75247.
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We have agreed to reimburse the selling shareholder for any losses and expenses he may have as
a result of any untrue or incomplete statement by us of a material fact in the registration
statement or prospectus. We will not, however, be required to reimburse the selling shareholder if
the untrue statement or omission results from information provided to us by the selling
shareholder. In the opinion of the SEC, such indemnification is against public policy as expressed
in the Securities Act of 1933, and, therefore, may be unenforceable. The selling shareholder may
be required to reimburse us for any losses or expenses we may have as a result of untrue or
incomplete information provided to us by the selling shareholder. We are registering a portion of
the shares offered by the selling shareholder pursuant to a registration rights agreement between
us and the selling shareholder included as an exhibit to the registration statement of which this
prospectus forms a part. Mr. Mead, in his individual capacity as our
chief executive officer is a party to an employment agreement with
us, which is described in the proxy statement for our 2007 annual
meeting.
DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus will be our senior or subordinated debt
securities issued under one or more separate senior or subordinated indentures to be entered into
between us and a trustee to be identified in the applicable prospectus supplement. This prospectus,
together with its prospectus supplement, will describe all the material terms of a particular
series of debt securities.
The following is a summary of the most important provisions and definitions that we expect
will be a part of the indentures. For additional information, you should look at the applicable
indenture that we will file prior to the offering of any debt securities. The indentures are
expected to be substantially identical except for the subordination provisions described below
under Subordinated Debt Securities. In this Description of Debt Securities, the words we, us
or our refer only to Silverleaf and not to any of our subsidiaries.
General
Debt securities may be issued in separate series without limitation as to aggregate principal
amount, though such amount shall be effectively limited by the aggregate principal amount of
securities that we may sell under this prospectus. We may specify a maximum aggregate principal
amount for the debt securities of any series.
The prospectus supplement will set forth:
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whether the debt securities will be senior or subordinated;
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the offering price;
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the title;
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any limit on the aggregate principal amount;
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the person who shall be entitled to receive interest, if other than the record
holder on the record date;
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the date the principal will be payable;
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the interest rate, if any, the date interest will accrue, the interest payment dates
and the regular record dates;
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the place where payments may be made;
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any mandatory or optional redemption provisions;
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if applicable, the method for determining how the principal, premium, if any, or
interest will be calculated by reference to an index or formula;
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if other than U.S. currency, the currency or currency units in which principal,
premium, if any, or interest will be payable and whether we or the holder may elect
payment to be made in a different currency;
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the portion of the principal amount that will be payable upon acceleration of stated
maturity, if other than the entire principal amount;
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if the principal amount payable at stated maturity will not be determinable as of
any date prior to stated maturity, the amount which will be deemed to be the principal
amount;
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any defeasance provisions if different from those described below under
Satisfaction and Discharge; Defeasance;
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any conversion or exchange provisions;
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any obligation to redeem or purchase the debt securities pursuant to a sinking fund;
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whether the debt securities will be issuable in the form of a global security;
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any subordination provisions, if different from those described below under
Subordinated Debt Securities;
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any deletions of, or changes or additions to, the events of default or covenants;
and
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any other specific terms of such debt securities.
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Unless otherwise specified in the prospectus supplement:
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the debt securities will be registered debt securities; and
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registered debt securities denominated in U.S. dollars will be issued in
denominations of $1,000 or an integral multiple of $1,000.
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Debt securities may be sold at a substantial discount below their stated principal amount,
bearing no interest or interest at a rate which at the time of issuance is below market rates.
Exchange and Transfer
Debt securities may be transferred or exchanged at the office of the security registrar or at
the office of any transfer agent designated by us.
We will not impose a service charge for any transfer or exchange, but we may require holders
to pay any tax or other governmental charges associated with any transfer or exchange.
11
In the event of any potential redemption of debt securities of any series, we will not be
required to:
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issue, register the transfer of, or exchange, any debt security of that series
during a period beginning at the opening of business 15 days before the day of mailing
of a notice of redemption and ending at the close of business on the day of the
mailing; or
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register the transfer of or exchange any debt security of that series selected for
redemption, in whole or in part, except the unredeemed portion being redeemed in part.
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We may initially appoint the trustee as the security registrar. Any transfer agent, in
addition to the security registrar, initially designated by us will be named in the prospectus
supplement. We may designate additional transfer agents or change transfer agents or change the
office of the transfer agent. However, we will be required to maintain a transfer agent in each
place of payment for the debt securities of each series.
Global Securities
The debt securities of any series may be represented, in whole or in part, by one or more
global securities. Each global security will:
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be registered in the name of a depositary that we will identify in a prospectus
supplement;
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be deposited with the depositary or nominee or custodian; and
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bear any required legends.
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No global security may be exchanged in whole or in part for debt securities registered in the
name of any person other than the depositary or any nominee unless:
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the depositary has notified us that it is unwilling or unable to continue as
depositary or has ceased to be qualified to act as depositary;
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an event of default is continuing; or
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any other circumstances described in a prospectus supplement occurs.
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As long as the depositary, or its nominee, is the registered owner of a global security, the
depositary or nominee will be considered the sole owner and holder of the debt securities
represented by the global security for all purposes under the indenture. Except in the above
limited circumstances, owners of beneficial interests in a global security:
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will not be entitled to have the debt securities registered in their names;
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will not be entitled to physical delivery of certificated debt securities; and
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will not be considered to be holders of those debt securities under the indentures.
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Payments on a global security will be made to the depositary or its nominee as the holder of
the global security. Some jurisdictions have laws that require that certain purchasers of
securities take physical delivery of such securities in definitive form. These laws may impair the
ability to transfer beneficial interests in a global security.
Institutions that have accounts with the depositary or its nominee are referred to as
participants. Ownership of beneficial interests in a global security will be limited to
participants and to persons that may hold beneficial interests through participants. The depositary
will credit, on its book-entry registration and transfer system, the respective principal amounts
of debt securities represented by the global security to the accounts of its participants.
12
Ownership of beneficial interests in a global security will be shown on and effected through
records maintained by the depositary, with respect to participants interests, or any participant,
with respect to interests of persons held by participants on their behalf.
Payments, transfers and exchanges relating to beneficial interests in a global security will
be subject to policies and procedures of the depositary.
The depositary policies and procedures may change from time to time. Neither we nor the
trustee will have any responsibility or liability for the depositarys or any participants records
with respect to beneficial interests in a global security.
Payment and Paying Agent
The provisions of this paragraph will apply to the debt securities unless otherwise indicated
in the prospectus supplement. Payment of interest on a debt security on any interest payment date
will be made to the person in whose name the debt security is registered at the close of business
on the regular record date. Payment on debt securities of a particular series will be payable at
the office of a paying agent or paying agents designated by us. However, at our option, we may pay
interest by mailing a check to the record holder. The corporate trust office will be designated as
our sole paying agent.
We may also name any other paying agents in the prospectus supplement. We may designate
additional paying agents, change paying agents or change the office of any paying agent. However,
we will be required to maintain a paying agent in each place of payment for the debt securities of
a particular series.
All moneys paid by us to a paying agent for payment on any debt security which remain
unclaimed at the end of two years after such payment was due will be repaid to us. Thereafter, the
holder may look only to us for such payment.
Consolidation, Merger and Sale of Assets
Except as otherwise set forth in the prospectus supplement, we may not consolidate with or
merge into any other person, in a transaction in which we are not the surviving corporation, or
convey, transfer or lease our properties and assets substantially as an entirety to, any person,
unless:
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the successor, if any, is a U.S. corporation, limited liability company,
partnership, trust or other entity;
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the successor assumes our obligations on the debt securities and under the
indenture;
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immediately after giving effect to the transaction, no default or event of default
shall have occurred and be continuing; and
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certain other conditions are met.
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Events of Default
Unless we inform you otherwise in the prospectus supplement, the indenture will define an
event of default with respect to any series of debt securities as one or more of the following
events:
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failure to pay principal of or any premium on any debt security of that series when
due;
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failure to pay any interest on any debt security of that series for 30 days when
due;
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failure to deposit any sinking fund payment within 30 days of when due;
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failure to perform any other covenant in the indenture continued for 90 days after
being given the notice required in the indenture;
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our bankruptcy, insolvency or reorganization; and
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any other event of default specified in the prospectus supplement.
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An event of default of one series of debt securities is not necessarily an event of default
for any other series of debt securities.
If an event of default, other than an event of default described in the fifth clause above,
shall occur and be continuing, either the trustee or the holders of at least 25% in aggregate
principal amount of the outstanding securities of that series may declare the principal amount of
the debt securities of that series to be due and payable immediately.
If an event of default described in the fifth clause above shall occur, the principal amount
of all the debt securities of that series will automatically become immediately due and payable.
Any payment by us on the subordinated debt securities following any such acceleration will be
subject to the subordination provisions described below under Subordinated Debt Securities.
After acceleration the holders of a majority in aggregate principal amount of the outstanding
securities of that series may, under certain circumstances, rescind and annul such acceleration if
all events of default, other than the non-payment of accelerated principal, or other specified
amount, have been cured or waived.
Other than the duty to act with the required care during an event of default, the trustee will
not be obligated to exercise any of its rights or powers at the request of the holders unless the
holders shall have offered to the trustee reasonable indemnity. Generally, the holders of a
majority in aggregate principal amount of the outstanding debt securities of any series will have
the right to direct the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the trustee.
A holder will not have any right to institute any proceeding under the indentures, or for the
appointment of a receiver or a trustee, or for any other remedy under the indentures, unless:
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the holder has previously given to the trustee written notice of a continuing event
of default with respect to the debt securities of that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series have made a written request and have offered reasonable
indemnity to the trustee to institute the proceeding; and
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the trustee has failed to institute the proceeding and has not received direction
inconsistent with the original request from the holders of a majority in aggregate
principal amount of the outstanding debt securities of that series within 60 days after
the original request.
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Holders may, however, sue to enforce the payment of principal, premium or interest on any debt
security on or after the due date or to enforce the right, if any, to convert any debt security
without following the procedures listed above.
We will furnish the trustee an annual statement by our officers as to whether or not we are in
default in the performance of the indenture and, if so, specifying all known defaults.
Modification and Waiver
Except as provided in the next two succeeding paragraphs, we and the trustee may make
modifications and amendments to the indentures (including, without limitation, through consents
obtained in connection with a purchase of, or tender offer or exchange offer for, outstanding
securities) and may waive any existing default or event of default (including, without limitation,
through consents obtained in connection with a purchase of, or tender offer for, outstanding
securities) with the consent of the holders of a majority in aggregate principal amount of the
outstanding securities of each series affected by the modification or amendment.
14
However, neither we nor the trustee may make any modification or amendment without the consent
of the holder of each outstanding security of that series affected by the modification or amendment
if such modification or amendment would:
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change the stated maturity of any debt security;
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reduce the principal of, premium, if any, on or interest on any debt security;
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reduce the principal of an original issue discount security or any other debt
security payable on acceleration of maturity;
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reduce the rate of interest on any debt security;
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change the currency in which any debt security is payable;
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impair the right to enforce any payment after the stated maturity or redemption
date;
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waive any default or event of default in payment of the principal of, premium on or
interest on any debt security;
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waive a redemption payment or modify any of the redemption provisions of any debt
security;
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adversely affect the right, if any, to convert any debt security; or
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change the provisions in the indenture that relate to modifying or amending the
indenture.
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Notwithstanding the preceding, without the consent of any holder of outstanding securities, we
and the trustee may amend or supplement the indentures:
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to cure any ambiguity, defect or inconsistency;
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to provide for uncertificated securities in addition to or in place of certificated
securities;
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to provide for the assumption of our obligations to holders of any debt security in
the case of a merger or consolidation or sale of all or substantially all of our
assets;
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to make any change that would provide any additional rights or benefits to the
holders of securities or that does not adversely affect the legal rights under the
indenture of any such holder;
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to comply with requirements of the Commission in order to effect or maintain the
qualification of an indenture under the Trust Indenture Act;
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to conform the text of the indentures to any provision of the Description of Debt
Securities to the extent that such provision in the Description of Debt Securities was
intended to be a verbatim recitation of a provision of the indentures;
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to provide for the issuance of additional securities in accordance with the
limitations set forth in the indenture as of the date of the indenture;
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to allow any guarantor to execute a supplemental indenture with respect to debt
securities and to release guarantors in accordance with the terms of the indenture; or
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to add additional obligors under the indenture and the securities.
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The consent of holders is not necessary under the indentures to approve the particular form of
any proposed amendment. It is sufficient if such consent approves the substance of the proposed
amendment.
15
Satisfaction and Discharge; Defeasance
We may be discharged from our obligations on the debt securities of any series that have
matured or will mature or be redeemed within one year if we deposit with the trustee enough cash to
pay all the principal, interest and any premium due on the stated maturity date or redemption date
of the debt securities.
Each indenture will contain a provision that permits us to elect:
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to be discharged from all of our obligations, subject to limited exceptions, with
respect to any series of debt securities then outstanding; and/or
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to be released from our obligations under the following covenants and from the
consequences of an event of default resulting from a breach of these covenants:
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(1)
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the subordination provisions under the subordinated indenture; and
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(2)
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covenants as to payment of taxes and maintenance of corporate existence.
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To make either of the above elections, we must deposit in trust with the trustee enough money
to pay in full the principal, interest and any premium on the debt securities. This amount may be
made in cash and/or U.S. government obligations. As a condition to either of the above elections,
we must deliver to the trustee an opinion of counsel that the holders of the debt securities will
not recognize income, gain or loss for Federal income tax purposes as a result of the action.
If any of the above events occurs, the holders of the debt securities of the series will not
be entitled to the benefits of the indenture, except for the rights of holders to receive payments
on the debt securities, the registration of transfer and exchange of the debt securities and
replacement of lost, stolen or mutilated debt securities.
Notices
Notices to holders will be given by mail to the addresses of the holders in the security
register.
Governing Law
The indentures and the debt securities will be governed by, and construed under, the laws of
the State of New York.
Regarding the Trustee
The indenture will limit the right of the trustee, should it become a creditor of us, to
obtain payment of claims or secure its claims.
The trustee is permitted to engage in certain other transactions. However, if the trustee
acquires any conflicting interest, and there is a default under the debt securities of any series
for which they are trustee, the trustee must eliminate the conflict or resign.
Subordinated Debt Securities
Payment on the subordinated debt securities will, to the extent provided in the indenture, be
subordinated in right of payment to the prior payment in full of all of our senior indebtedness
(except that holders of notes may receive and retain subordinated debt securities and payments made
from either of the trusts described under Satisfaction and Discharge; Defeasance). The
subordinated debt securities also are effectively subordinated to all debt and other liabilities,
including trade payables and lease obligations, if any, of our subsidiaries, if any.
16
Upon any distribution of our assets upon any dissolution, winding up, liquidation or
reorganization, the payment of the principal of and interest on the subordinated debt securities
will be subordinated in right of payment to the prior payment in full in cash or other payment
satisfactory to the holders of senior indebtedness of all senior indebtedness. In the event of any
acceleration of the subordinated debt securities because of an event of default, the holders of any
senior indebtedness would be entitled to payment in full in cash or other payment satisfactory to
such holders of all senior indebtedness obligations before the holders of the subordinated debt
securities are entitled to receive any payment or distribution (except that holders of notes may
receive and retain subordinated debt securities and payments made from either of the trusts
described under Satisfaction and Discharge; Defeasance)
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The indenture will require us or the
trustee to promptly notify holders of designated senior indebtedness if payment of the subordinated
debt securities is accelerated because of an event of default.
We may not make any payment on the subordinated debt securities, including upon redemption at
the option of the holder of any subordinated debt securities or at our option, if:
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a default in the payment of the principal, premium, if any, interest, rent or other
obligations in respect of designated senior indebtedness occurs and is continuing
beyond any applicable period of grace (called a payment default); or
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a default other than a payment default on any designated senior indebtedness occurs
and is continuing that permits holders of designated senior indebtedness to accelerate
its maturity, and the trustee receives a notice of such default (called a payment
blockage notice) from us or any other person permitted to give such notice under the
indenture (called a non-payment default).
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We may resume payments and distributions on the subordinated debt securities:
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in the case of a payment default, upon the date on which such default is cured,
waived or ceases to exist; and
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in the case of a non-payment default, the earlier of the date on which such
nonpayment default is cured, waived or ceases to exist and 179 days after the date on
which the payment blockage notice is received by the trustee, if the maturity of the
designated senior indebtedness has not been accelerated.
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No new period of payment blockage may be commenced pursuant to a payment blockage notice
unless 365 days have elapsed since the initial effectiveness of the immediately prior payment
blockage notice and all scheduled payments of principal, any premium and interest, including any
liquidated damages, on the notes that have come due have been paid in full in cash. No non-payment
default that existed or was continuing on the date of delivery of any payment blockage notice shall
be the basis for any later payment blockage notice unless the non-payment default is based upon
facts or events arising after the date of delivery of such payment blockage notice.
If the trustee or any holder of the notes receives any payment or distribution of our assets
in contravention of the subordination provisions on the subordinated debt securities before all
senior indebtedness is paid in full in cash, property or securities, including by way of set-off,
or other payment satisfactory to holders of senior indebtedness, then such payment or distribution
will be held in trust for the benefit of holders of senior indebtedness or their representatives to
the extent necessary to make payment in full in cash or payment satisfactory to the holders of
senior indebtedness of all unpaid senior indebtedness (except that holders of notes may receive and
retain subordinated debt securities and payments made from either of the trusts described under
Satisfaction and Discharge; Defeasance).
In the event of our bankruptcy, dissolution or reorganization, holders of senior indebtedness
may receive more, ratably, and holders of the subordinated debt securities may receive less,
ratably, than our other creditors (including our trade creditors). This subordination will not
prevent the occurrence of any event of default under the indenture.
We will be obligated to pay reasonable compensation to the trustee and to indemnify the
trustee against certain losses, liabilities or expenses incurred by the trustee in connection with
its duties relating to the subordinated debt securities. The trustees claims for these payments
will generally be senior to those of noteholders in respect of all funds collected or held by the
trustee.
17
Certain Definitions
Senior indebtedness means the principal, premium, if any, interest, including any interest
accruing after bankruptcy, and rent or termination payment on or other amounts due on our current
or future indebtedness, whether created, incurred, assumed, guaranteed or in effect guaranteed by
us, including any deferrals, renewals, extensions, refundings, amendments, modifications or
supplements to the above. However, senior indebtedness does not include:
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indebtedness that expressly provides that it shall not be senior in right of payment
to the subordinated debt securities or expressly provides that it is on the same basis
or junior to the subordinated debt securities;
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our indebtedness to any of our majority-owned subsidiaries, and
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the subordinated debt securities.
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DESCRIPTION OF COMMON STOCK
The following summary of the terms of our common stock does not purport to be complete and is
subject to and qualified in its entirety by reference to our Articles of Incorporation and Bylaws,
copies of which are on file with the Commission as exhibits to registration statements previously
filed by us. See Where You Can Find More Information.
We have authority to issue 100,000,000 shares of common stock, $0.01 par value per share. As
of October 23, 2007, we had 37,818,154 shares of common stock outstanding.
Each share of common stock entitles its holder to one vote on all matters to be voted upon by
shareholders. The holders of common stock are not entitled to cumulative voting rights with respect
to the election of directors, and as a consequence, minority shareholders will not be able to elect
directors on the basis of their votes alone. Subject to preferences that may apply to any
outstanding preferred stock, holders of common stock may receive ratably any dividends that the
board of directors may declare out of funds legally available for that purpose. In the event of our
liquidation, dissolution or winding up, the holders of common stock are entitled to share ratably
in all assets remaining after payment of liabilities and any liquidation preference of preferred
stock that may be outstanding. The common stock has no preemptive rights, conversion rights or
other subscription rights or redemption or sinking fund provisions. All outstanding shares of
common stock are fully paid and non-assessable, and all shares of common stock to be issued under
this prospectus will be fully paid and non-assessable.
Anti-Takeover Effects of Provisions of Texas Law And Our Charter Documents
The following paragraphs summarize certain provisions of the Texas Business Corporation Act
(the TBCA) and our Articles of Incorporation and Bylaws. The summary does not purport to be
complete and is subject to and qualified in its entirety by reference to the TBCA and to our
Articles of Incorporation and Bylaws, copies of which are on file with the Commission and are
exhibits to the registration statements of which this prospectus is a part. See Where You Can Find
More Information.
Our amended and restated articles of incorporation (Articles of Incorporation) and our
amended and restated bylaws (Bylaws) contain provisions that, together with the ownership
position of our officers, directors and their affiliates, could discourage potential takeover
attempts and make it more difficult for shareholders to change management, which could adversely
affect the market price of our common stock.
Director Liability
Our Articles of Incorporation limit the personal liability of our directors to our company and
our shareholders to the fullest extent permitted by applicable law. The inclusion of this provision
in our Articles of Incorporation may reduce the likelihood of derivative litigation against our
directors and may discourage or deter shareholders or management from bringing a lawsuit against
our directors for breach of their duty of care.
18
Shareholder Action and Meetings of Shareholders
In addition, our Bylaws provide that shareholders wishing to propose business to be brought
before a meeting of shareholders will be required to comply with various advance notice
requirements. A special meeting of the shareholders may be called by our Chief Executive Officer
or a resolution adopted by a majority of the total number of directors. In addition, our Chief
Executive Officer is required to call a special meeting of the shareholders upon receipt of a
written request from shareholders who own at least ten percent of the issued and outstanding number
of shares entitled to vote at the special meeting.
Business Combination Law of Texas
We are subject to the Texas Business Combination Law. This statute regulating corporate
takeovers prohibits a Texas corporation from engaging in any business combination with any
affiliated shareholder for three years following the date that such shareholder became an
affiliated shareholder, unless:
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prior to the date of the transaction, the board of directors of the corporation
approved either the business combination or the transaction which resulted in the
shareholder becoming an affiliated shareholder; or
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no later than six months after the date of the transaction, the business combination
is approved by the affirmative vote of the holders of at least two-thirds of the
outstanding voting stock not beneficially owned by the affiliated shareholder at an
annual or special meeting of shareholders duly called for the purpose of approving the
transaction, and not by written consent.
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In general, the Business Combination Law defines business combination to include the
following:
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any merger or consolidation involving the corporation and the affiliated
shareholder;
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any sale, transfer, pledge or other disposition of assets in one or more
transactions with an affiliated shareholder that (i) have an aggregate fair market
value equal to 10% or more of the aggregate market value of all the assets of the
corporation, (ii) have an aggregate value equal to 10 percent or more of the aggregate
market value of all the outstanding voting shares of the corporation, or (iii)
represent 10 percent or more of the earning power or net income of the corporation;
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subject to certain exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the affiliated
shareholder;
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any transaction involving the corporation that has the effect of increasing the
proportionate share of the stock or any class or series of the corporation beneficially
owned by the affiliated shareholder;
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the adoption of a plan or proposal for the liquidation or dissolution of the
corporation proposed by, or pursuant to any agreement, arrangement, or understanding
with an affiliated shareholder or an affiliate or associate of the affiliated
shareholder; or
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the receipt by the affiliated shareholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or through the corporation.
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In general, the Business Combination Law defines affiliated shareholder as an entity or
person beneficially owning 20% or more of the outstanding voting stock of the corporation and any
entity or person affiliated with or controlling or controlled by such entity or person.
We expect the existence of this provision to have an anti-takeover effect with respect to
transactions our board of directors does not approve in advance. The Business Combination Law may
also discourage takeover attempts that might result in a premium over the market price for the
shares of common stock held by shareholders.
19
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Mellon Investor Services LLC.
Listing on the Nasdaq Capital Market
Our common stock is listed on the Nasdaq Capital Market under the symbol SVLF.
DESCRIPTION OF PREFERRED STOCK
We have authority to issue 10,000,000 shares of preferred stock, $0.01 par value per share. As
of October 23, 2007, we had no shares of preferred stock outstanding.
General
Under our Articles of Incorporation, our board of directors is authorized generally without
shareholder approval to issue shares of preferred stock from time to time, in one or more classes
or series. Prior to the issuance of shares of each series, the board of directors is required by
the TBCA and our Articles of Incorporation to adopt resolutions and file a certificate of
designation with the Secretary of State of the State of Texas. The certificate of designation fixes
for each class or series the designations, powers, preferences, rights, qualifications, limitations
and restrictions, including, but not limited to, the following:
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the number of shares constituting each class or series;
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voting rights;
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rights and terms of redemption (including sinking fund provisions);
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dividend rights and rates;
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dissolution;
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terms concerning the distribution of assets;
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conversion or exchange terms;
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redemption prices; and
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liquidation preferences.
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All shares of preferred stock offered hereby will, when issued, be fully paid and
nonassessable and will not have any preemptive or similar rights. Our board of directors could
authorize the issuance of shares of preferred stock with terms and conditions which could have the
effect of discouraging a takeover or other transaction that might involve a premium price for
holders of the shares or which holders might believe to be in their best interests.
We will set forth in a prospectus supplement relating to the class or series of preferred
stock being offered the following terms:
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the title and stated value of the preferred stock;
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the number of shares of the preferred stock offered, the liquidation preference per
share and the offering price of the preferred stock;
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the dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation
applicable to the preferred stock;
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whether dividends are cumulative or non-cumulative and, if cumulative, the date from
which dividends on the preferred stock will accumulate;
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the procedures for any auction and remarketing, if any, for the preferred stock;
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the provisions for a sinking fund, if any, for the preferred stock;
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the provision for redemption, if applicable, of the preferred stock;
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any listing of the preferred stock on any securities exchange;
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the terms and conditions, if applicable, upon which the preferred stock will be
convertible into common stock, including the conversion price (or manner of
calculation) and conversion period;
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voting rights, if any, of the preferred stock;
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whether interests in the preferred stock will be represented by depositary shares;
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a discussion of any material and/or special United States Federal income tax
considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights
and rights upon the liquidation, dissolution or winding up of our affairs;
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any limitations on issuance of any class or series of preferred stock ranking senior
to or on a parity with the class or series of preferred stock as to dividend rights and
rights upon liquidation, dissolution or winding up of our affairs; and
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any other specific terms, preferences, rights, limitations or restrictions of the
preferred stock.
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Rank
Unless we specify otherwise in the applicable prospectus supplement, the preferred stock will
rank, with respect to dividends and upon our liquidation, dissolution or winding up:
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senior to all classes or series of our common stock and to all of our equity
securities ranking junior to the preferred stock;
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on a parity with all of our equity securities the terms of which specifically
provide that the equity securities rank on a parity with the preferred stock; and
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junior to all of our equity securities the terms of which specifically provide that
the equity securities rank senior to the preferred stock.
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The term equity securities does not include convertible debt securities.
Transfer Agent and Registrar
The transfer agent and registrar for any series or class of preferred stock will be set forth
in the applicable prospectus supplement.
21
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt securities, common stock or preferred stock. We
may issue warrants independently or together with any other securities offered by any prospectus
supplement and may be attached to or separate from the other offered securities. Each series of
warrants will be issued under a separate warrant agreement to be entered into by us with a warrant
agent. The warrant agent will act solely as our agent in connection with the series of warrants and
will not assume any obligation or relationship of agency or trust for or with any holders or
beneficial owners of the warrants. Further terms of the warrants and the applicable warrant
agreements will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will describe the terms of the warrants in respect of
which this prospectus is being delivered, including, where applicable, the following:
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the title of the warrants;
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the aggregate number of the warrants;
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the price or prices at which the warrants will be issued;
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the designation, terms and number of shares of debt securities, preferred stock or
common stock purchasable upon exercise of the warrants;
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the designation and terms of the offered securities, if any, with which the warrants
are issued and the number of the warrants issued with each offered security;
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the date, if any, on and after which the warrants and the related debt securities,
preferred stock or common stock will be separately transferable;
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the price at which each share of debt securities, preferred stock or common stock
purchasable upon exercise of the warrants may be purchased;
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the date on which the right to exercise the warrants shall commence and the date on
which that right shall expire;
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the minimum or maximum amount of the warrants which may be exercised at any one
time;
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information with respect to book-entry procedures, if any;
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a discussion of certain federal income tax considerations; and
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any other terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the warrants.
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LEGAL MATTERS
The
validity of the securities covered by this prospectus will be passed upon
for us by Meadows, Collier, Reed, Cousins & Blau, LLP.
EXPERTS
The consolidated financial statements incorporated by reference in this Prospectus have been
audited by BDO Seidman, LLP, an independent registered public accounting firm, to the extent and
for the periods set forth in their report incorporated herein by reference, and are incorporated
herein in reliance upon such report given upon the authority of said firm as experts in auditing
and accounting.
22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated costs and expenses in connection with the
distribution of the securities covered by the registration statement of which this prospectus is a
part. We will bear all of these expenses.
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Registration fee under the Securities Act
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$
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4,729
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Accounting fees and expenses
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$
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15,000
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Legal fees and expenses
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$
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30,000
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Printing Expenses
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$
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25,000
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Transfer Agent Fees and Expenses
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$
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5,000
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Trustee Fees and Expenses
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$
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5,000
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Miscellaneous
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$
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1,000
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Total
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$
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85,729
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Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Companys Charter limits the liability of the Companys directors and officers to the
Company and its shareholders to the fullest extent permitted by law. The Texas Business
Corporation Act (TBCA) presently permits the liability of directors and officers to a corporation
or its shareholders for money damages to be limited, except for (i) a breach of the duty of loyalty
to the corporation or its shareholders, (ii) an act or omission not in good faith that is a breach
of a duty to the corporation or that involves intentional misconduct or a knowing violation of the
law, (iii) a transaction in which the director or officer received an improper benefit, or (iv)
other statutory exceptions.
The Company has also entered into an agreement with each of its directors and certain of its
officers wherein it has agreed to indemnify each of them to the fullest extent permitted by law.
Pursuant to the Indemnification Agreement, the Company shall indemnify an officer who is or was a
party or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that such person is or was a director, officer,
employee or agent of the Company, or any subsidiary of the Company, by reason of any action or
inaction on the part of such person while an officer or director or by reason of the fact that such
person is or was serving at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be unreasonably withheld) actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe such persons conduct was unlawful. The Indemnification Agreements
provide the procedure by which an officer may seek indemnification by the Company.
The Companys Charter and Bylaws require the Company to indemnify its directors, officers and
certain other parties the fullest extent permitted from time to time by law. The TBCA presently
permits a corporation to indemnify its directors, officers and certain other parties against
judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party only if (i) the indemnified party
conducted himself in good faith, (ii) if a director, his conduct was in the corporations best
interest, or, if not a director, his conduct was not opposed to the corporations best interests,
and (iii) in the case of any criminal proceeding, the indemnified party had no reasonable cause to
believe his conduct was unlawful. Indemnification may be made against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by the director or officer in connection with
the proceeding; provided, however, if the director or officer has been adjudged to be liable to the
corporation or is found liable on the basis that personal benefit was improperly received,
indemnification (i) is limited to reasonable expenses actually incurred by such person in the
proceeding, and (ii) shall not be made in respect of any
II-1
proceeding in which the person shall have been found liable for willful or intentional misconduct
in the performance of his duty to the corporation. The termination of any proceeding by judgment,
order, settlement, or conviction, or upon a plea of
nolo contendere
or its equivalent, is not
itself determinative that the director or officer did not meet the requisite standard of conduct
required for indemnification to be permitted.
The Company has obtained a directors and officers liability insurance policy that insures (i)
the directors and officers of the Company from any claim arising out of an alleged wrongful act by
such persons while acting as directors and/or officers of the Company, (ii) the Company to the
extent that it has indemnified the directors and officers for such loss, and (iii) the Company for
losses incurred in connection with claims made against the Company for covered wrongful acts.
Item 16. EXHIBITS
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+1.1
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Underwriting Agreement
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3.1
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Amended and Restated Articles of Incorporation of Registrant (incorporated by reference to
Exhibit 3.1 to Registrants Form 8-K, dated December 29, 2003).
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3.2
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Amended and Restated Bylaws of Registrant (incorporated by reference to Exhibit 3.1 to
Registrants Form 10-Q for the quarter ended September 30, 2003).
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+3.3
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Certificate of Designation of Preferred Stock of Registrant
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4.1
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Form of Stock Certificate of the Registrant (incorporated by reference to Exhibit 4.1 to
Amendment No. 1 dated May 16, 1997 to the Registrants Registration Statement on Form S-1, File
No. 333-24273).
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+4.2
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Form of Preferred Stock Certificate of the Registrant
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*4.3
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Form of Senior Debt Indenture, between the Registrant and one or more trustees to be named
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*4.4
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Form of Subordinated Debt Indenture, between the Registrant and one or more trustees to be named
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+4.5
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Form of Senior Note
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+4.6
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Form of Subordinated Note
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+4.7
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Form of Common Stock Warrant Agreement and Warrant Certificate
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+4.8
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Form of Preferred Stock Warrant Agreement and Warrant Certificate
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+4.9
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Form of Debt Securities Warrant Agreement and Warrant Certificate
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*5.1
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Opinion of Meadows, Collier, Reed, Cousins & Blau, LLP
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10.1
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Registration Rights Agreement Between Robert E. Mead and Registrant (incorporated by reference
to Exhibit 10.1 to Amendment No. 1 to the Registrants Registration Statement on Form S-1, File
No. 333-24273)
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*11.1
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Statement Re Computation of Per Share Earnings of Registrant
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*12.1
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Statement of Computation of Ratio of Earnings to Fixed Charges
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*23.1
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Consent of Meadows, Collier, Reed, Cousins & Blau, LLP (included as part of Exhibit 5.1)
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*23.2
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Consent of BDO Seidman, LLP, Independent Registered Public Accounting Firm
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+25.1
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Statement of Eligibility of Trustee under the Senior Debt Indenture
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+25.1
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Statement of Eligibility of Trustee under the Subordinated Debt Indenture
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To be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as
amended, and incorporated herein by reference, if applicable.
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*
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Filed herewith
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Item 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; and
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(ii) To reflect in the prospectus any facts or events arising after the effective date
of this registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate offering price set forth
in the Calculation of Registration Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such
information in the registration statement;
provided, however
, that paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply
if the information required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of the registration statement as of the date the filed prospectus was deemed part
of and included in this Registration Statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as part of a registration statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter, such date shall be deemed
to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of this Registration Statement or made in any such document
immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
II-3
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended (and,
where applicable, each filing of an employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
indemnification provisions described herein, or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act, and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed by the
Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Dallas,
State of Texas, on October 23,
2007.
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SILVERLEAF RESORTS, INC.
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By:
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/s/ ROBERT E. MEAD
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Name:
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Robert E. Mead
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Title:
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Chairman of the Board and Chief
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Executive Officer (Principal Executive Officer)
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II-4
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on the dates indicated:
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Signature
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Title
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Date
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/s/ ROBERT E. MEAD
Robert E. Mead
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Chairman of the Board and
Chief Executive Officer
(Principal Executive
Officer)
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October 23, 2007
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/s/ HARRY J. WHITE, JR
Harry J. White, Jr.
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Chief Financial Officer
(Principal Financial
and Accounting Officer)
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October 23, 2007
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/s/ J. RICHARD BUDD, III
J. Richard Budd, III
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Director
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October 23, 2007
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/s/ JAMES B. FRANCIS, JR.
James B. Francis, Jr.
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Director
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October 23, 2007
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/s/ HERBERT B. HIRSCH
Herbert B. Hirsch
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Director
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October 23, 2007
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/s/ REBECCA JANET WHITMORE
Rebecca Janet Whitmore
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Director
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October 23, 2007
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II-5
INDEX OF EXHIBITS
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+1.1
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Underwriting Agreement
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3.1
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Amended and Restated Articles of Incorporation of Registrant (incorporated by reference to
Exhibit 3.1 to Registrants Form 8-K, dated December 29, 2003).
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3.2
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Amended and Restated Bylaws of Registrant (incorporated by reference to Exhibit 3.1 to
Registrants Form 10-Q for the quarter ended September 30, 2003).
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+3.3
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Certificate of Designation of Preferred Stock of Registrant
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4.1
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Form of Stock Certificate of the Registrant (incorporated by reference to Exhibit 4.1 to
Amendment No. 1 dated May 16, 1997 to the Registrants Registration Statement on Form S-1, File
No. 333-24273).
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+4.2
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Form of Preferred Stock Certificate of the Registrant
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*4.3
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Form of Senior Debt Indenture, between the Registrant and one or more trustees to be named
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*4.4
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Form of Subordinated Debt Indenture, between the Registrant and one or more trustees to be named
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+4.5
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Form of Senior Note
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+4.6
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Form of Subordinated Note
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+4.7
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Form of Common Stock Warrant Agreement and Warrant Certificate
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+4.8
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Form of Preferred Stock Warrant Agreement and Warrant Certificate
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+4.9
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Form of Debt Securities Warrant Agreement and Warrant Certificate
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*5.1
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Opinion of Meadows, Collier, Reed, Cousins & Blau, LLP
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10.1
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Registration Rights Agreement Between Robert E. Mead and Registrant (incorporated by reference
to Exhibit 10.1 to Amendment No. 1 to the Registrants Registration Statement on Form S-1, File
No. 333-24273)
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*11.1
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Statement Re Computation of Per Share Earnings of Registrant
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*12.1
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Statement of Computation of Ratio of Earnings to Fixed Charges
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*23.1
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Consent of Meadows, Collier, Reed, Cousins & Blau, LLP (included as part of Exhibit 5.1)
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*23.2
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Consent of BDO Seidman, LLP, Independent Registered Public Accounting Firm
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+25.1
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Statement of Eligibility of Trustee under the Senior Debt Indenture
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+25.1
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Statement of Eligibility of Trustee under the Subordinated Debt Indenture
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+
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To be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as
amended, and incorporated herein by reference, if applicable.
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*
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Filed herewith
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II-6
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