AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 19, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CONTINENTAL AIRLINES
CONTINENTAL AIRLINES, INC. FINANCE TRUST III
(Exact name of registrant as specified in its charter) (Exact name of registrant as specified in its charter)
DELAWARE 74-2099724 DELAWARE 76-6175450
(State of incorporation) (I.R.S. Employer Identification (State of organization) (I.R.S. Employer
No.) Identification No.)
1600 SMITH STREET
HOUSTON, TEXAS 77002
(713) 324-5000
(Address, including zip code and telephone number, including area code,
of registrant's principal executive offices)
COPIES TO:
JENNIFER L. VOGEL, ESQ. KEVIN P. LEWIS
VICE PRESIDENT AND GENERAL COUNSEL VINSON & ELKINS L.L.P.
1600 SMITH STREET 2300 FIRST CITY TOWER
DEPARTMENT HQSLG HOUSTON, TEXAS 77002-6760
HOUSTON, TEXAS 77002 (713) 758-2222
(713) 324-5000
(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
(Continued on next page)
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(Continued from previous page)
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1)(2)(3) PRICE(1)(2)(3)(4) REGISTRATION FEE
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Debt Securities....................................
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Class B Common Stock(5)............................
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Preferred Stock....................................
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Stock Purchase Contracts...........................
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Stock Purchase Units...............................
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Depositary Shares(6)...............................
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Warrants...........................................
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Trust Preferred Securities of Continental Airlines
Finance Trust III................................
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Guarantees of Trust Preferred Securities of
Continental Airlines Finance Trust III(7)........
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Junior Subordinated Trust Debentures(8)............
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Total.................................... $500,000,000(9) $125,000
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(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II(D) to Form S-3.
(2) This registration statement also covers an indeterminate amount of
securities that may be issued in exchange for, or upon conversion, exercise
or settlement of, as the case may be, any securities registered hereunder
that provide for conversion, exercise or exchange. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(4) The proposed maximum offering price per unit will be determined from time to
time by the registrants in connection with, and at the time of, the issuance
by the registrants of the securities registered hereunder.
(5) Each share of common stock registered hereunder includes an associated
preferred share purchase right, which are not exercisable and are not
separately tradable until certain events occur. No separate consideration
will be received for the preferred share purchase rights.
(6) The depositary shares registered hereunder will be evidenced by depositary
receipts issued pursuant to a deposit agreement. If the registrants elect to
offer to the public fractional interests in shares of preferred stock, then
depositary receipts will be distributed to those persons purchasing the
fractional interests and the shares will be issued to the depositary under
the deposit agreement.
(7) Includes the rights of holders of the trust preferred securities under the
guarantee of trust preferred securities and back-up undertakings, consisting
of obligations by Continental Airlines, Inc., as set forth in the
declaration of trust, the applicable indenture and any supplemental
indenture thereto, in each case as further described in the registration
statement. No separate consideration will be received for any guarantee or
any back-up undertaking.
(8) Trust debentures may be issued and sold to Continental Airlines Finance
Trust III, and the trust debentures may later be distributed to the holders
of trust preferred securities.
(9) The aggregate principal amount of the debt securities may be increased if
any debt securities are issued at an original issue discount by an amount
such that the gross proceeds to be received by the registrants shall be
equal to the above amount to be registered. Any offering of debt securities
denominated other than in U.S. dollars will be treated as the equivalent of
U.S. dollars based on the exchange rate applicable to the purchase of such
debt securities at the time of initial offering. In no event will the
aggregate initial offering price of all securities issued from time to time
pursuant to this registration statement exceed $500,000,000, or the
equivalent thereof in foreign currencies or composite currencies. The
aggregate amount of common stock is further limited to that which is
permissible under Rule 415(a)(4).
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT THAT CONTAINS THIS
PROSPECTUS AND THAT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THOSE SECURITIES AND IT IS
NOT SOLICITING AN OFFER TO BUY THOSE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED OCTOBER 19, 2001
PROSPECTUS
$500,000,000
CONTINENTAL AIRLINES LOGO
CONTINENTAL AIRLINES, INC.
DEBT SECURITIES, COMMON STOCK,
PREFERRED STOCK, STOCK PURCHASE CONTRACTS, STOCK PURCHASE UNITS,
DEPOSITARY SHARES, WARRANTS, JUNIOR SUBORDINATED TRUST DEBENTURES
AND GUARANTEE OF TRUST SECURITIES
CONTINENTAL AIRLINES FINANCE TRUST III
TRUST PREFERRED SECURITIES
GUARANTEED, AS DESCRIBED HEREIN, BY CONTINENTAL AIRLINES, INC.
Continental Airlines, Inc. may offer and sell the securities listed above
from time to time in one or more classes or series and in amounts, at prices and
on terms that we will determine at the time of the offering. Continental
Airlines Finance Trust III, a Delaware business trust, may offer and sell, from
time to time, trust preferred securities representing undivided beneficial
interests in the assets of Continental Airlines Finance Trust III. The aggregate
initial public offering prices of the securities offered under this prospectus
will not exceed $500,000,000.
We will provide specific terms of these securities and the manner in which
we will sell them in supplements to this prospectus. You should read this
prospectus and any prospectus supplement carefully before you invest.
Our common stock is listed for trading on the New York Stock Exchange under
the symbol "CAL."
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED ANY OF THESE SECURITIES OR DETERMINED IF
THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is , 2001.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS....................................... 1
WHERE YOU CAN FIND MORE INFORMATION......................... 2
FORWARD-LOOKING STATEMENTS.................................. 2
INCORPORATION BY REFERENCE.................................. 2
CONTINENTAL AIRLINES, INC. ................................. 4
THE TRUST................................................... 4
USE OF PROCEEDS............................................. 5
RATIO OF EARNINGS TO FIXED CHARGES.......................... 5
DESCRIPTION OF DEBT SECURITIES.............................. 5
DESCRIPTION OF TRUST SECURITIES............................. 15
DESCRIPTION OF TRUST DEBENTURES............................. 26
DESCRIPTION OF GUARANTEE.................................... 33
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE TRUST DEBENTURES AND THE GUARANTEE...................... 36
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK............. 37
DESCRIPTION OF DEPOSITARY SHARES............................ 43
DESCRIPTION OF WARRANTS..................................... 45
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE
UNITS..................................................... 45
PLAN OF DISTRIBUTION........................................ 46
LEGAL MATTERS............................................... 47
EXPERTS..................................................... 48
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 the accompanying prospectus
supplement. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or the accompanying
prospectus supplement as if we had authorized it. This prospectus and the
accompanying prospectus supplement are not an offer to sell or the solicitation
of an offer to buy any securities other than the registered securities to which
they relate. This prospectus and the accompanying prospectus supplement are not
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 an offer or
solicitation in that jurisdiction. The information contained in this prospectus
and the accompanying prospectus supplement is accurate as of the dates on their
covers. When we deliver this prospectus or a supplement or make a sale pursuant
to this prospectus, we are not implying that the information is current as of
the date of the delivery or sale.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, which we refer to as the "SEC", utilizing a
"shelf" registration process. Under this shelf registration process, we may
offer and sell any combination of the securities described in this prospectus in
one or more offerings up to a total dollar amount of $500,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we offer securities, we will provide a prospectus supplement
and attach it to this prospectus. The prospectus supplement will contain
specific information about the terms of the offering and the securities being
offered at that time. The prospectus supplement also may add, update or change
information contained in this prospectus. In this prospectus, "Continental,"
"we, "us," our" and the "company" each refers to Continental Airlines, Inc. and
not to Continental Airlines Finance Trust III, unless the context indicates
otherwise.
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To the extent information in this prospectus is inconsistent with
information contained in a prospectus supplement, you should rely on the
information in the prospectus supplement. You should read both this prospectus
and any prospectus supplement, together with additional information described
under the heading "Where You Can Find More Information," and any additional
information you may need to make your investment decision.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC under the Securities Exchange Act of 1934. You may read
and copy this information, or obtain copies (at prescribed rates) by mail from,
the Public Reference Room of the SEC, 450 Fifth Street, N.W., Washington, D.C.
20549. You may obtain information on the operation of the Public Reference Room
by calling the SEC at (800) SEC-0330. The SEC also maintains an internet world
wide web site that contains reports, proxy statements and other information
about issuers, like us, who file reports electronically with the SEC. The
address of that site is http://www.sec.gov. You may also inspect reports, proxy
statements and other information about us at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement delivered with this prospectus
and the documents we incorporate by reference may contain statements that
constitute "forward-looking statements" within the meaning of Section 27A of the
Securities Act of 1933, and Section 21E of the Securities Exchange Act of 1934.
Forward-looking statements include any statements that predict, forecast,
indicate or imply future results, performance or achievements, and may contain
the words "believe," "anticipate," "expect," "estimate," "project," "will be,"
"will continue," "will result," or words or phrases of similar meaning.
Any such forward-looking statements are not assurances of future
performance and involve risks and uncertainties. Actual results may vary
materially from anticipated results for a number of reasons, including those
stated under the caption "Risk Factors" in our SEC reports incorporated in this
prospectus by reference.
All forward-looking statements attributable to us are expressly qualified
in their entirety by the cautionary statements above.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with
the SEC into this prospectus. This means that we can disclose important
information to you by referring you to another document filed separately with
the SEC. The information incorporated by reference is considered to be part of
this prospectus, except for any information that is superseded by subsequent
incorporated documents or by information that is included directly in this
prospectus or any prospectus supplement.
This prospectus incorporates by reference the documents listed below that
we previously have filed with the SEC and that are not delivered with this
prospectus. They contain important information about us and our financial
condition.
- Our Annual Report on Form 10-K for the year ended December 31, 2000.
- Our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2001
and for the quarter ended June 30, 2001.
- Our Current Reports on Form 8-K, filed with the SEC on January 19, 2001,
February 5, 2001, March 8, 2001, March 20, 2001, April 17, 2001, May 3,
2001, May 4, 2001, May 10, 2001, June 1, 2001, June 4, 2001, July 3,
2001, July 10, 2001, July 11, 2001, July 13, 2001 (as amended on Form
8-K/A, filed with the SEC on July 13, 2001), July 17, 2001, August 2,
2001, August 9, 2001, August 10, 2001, September 4, 2001, September 7,
2001, September 17, 2001, September 19, 2001,
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September 21, 2001, September 21, 2001, September 24, 2001, October 1,
2001, October 2, 2001, October 15, 2001 and October 15, 2001.
- The description of our common stock contained in our Registration
Statement on Form 8-A/A#3, as filed with the SEC on February 6, 2001.
- The description and terms of the preferred share purchase rights
associated with our outstanding common stock contained in our
registration statement on Form 8A/A, as filed with the SEC on January 22,
2001.
Our SEC file number is 0-9781.
We incorporate by reference additional documents that we may file with the
SEC under Sections 13(a), 13(c), 14 or 15(a) of the Securities Exchange Act
between the date of this prospectus and the termination of the offering of
securities under this prospectus. These documents include our periodic reports,
such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K, as well as our proxy statements.
You may obtain any of these incorporated documents from us without charge,
excluding any exhibits to those documents unless the exhibit is specifically
incorporated by reference in such document. You may obtain documents
incorporated by reference in this prospectus by requesting them from us in
writing or by telephone at the following address:
Continental Airlines, Inc.
1600 Smith Street,
Dept. HQSEO
Houston, Texas 77002
Attention: Secretary
(713) 324-2950
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CONTINENTAL AIRLINES, INC.
We are a major U.S. air carrier engaged in the business of transporting
passengers, cargo and mail. We are the fifth largest U.S. airline, as measured
by 2000 revenue passenger miles, and, together with our wholly-owned
subsidiaries, ExpressJet Airlines, Inc. (formerly Continental Express, Inc.) and
Continental Micronesia, Inc., served 211 airports worldwide at October 7, 2001.
As of October 7, 2001, we flew to 120 domestic and 91 international destinations
and offered additional connecting service through alliances with domestic and
foreign carriers. We directly served 15 European cities, eight South American
cities, Tel Aviv and Tokyo and are one of the leading airlines providing service
to Mexico and Central America, serving more destinations there than any other
U.S. airline. Through our Guam hub, Continental Micronesia provides extensive
service in the western Pacific, including service to more Japanese cities than
any other U.S. carrier.
We operate our route system primarily through domestic hubs at Newark
International Airport, George Bush Intercontinental Airport in Houston, Hopkins
International Airport in Cleveland, and a Pacific hub on the island of Guam. We
are the primary carrier at each of these hubs, accounting for 56%, 77%, 44% and
70% of average daily jet departures from these locations, respectively, as of
October 7, 2001 (in each case excluding regional jets). Each of our domestic
hubs is located in a large business and population center, contributing to a
high volume of "origin and destination" traffic. The Guam hub is strategically
located to provide service from Japanese and other Asian cities to popular
resort destinations in the western Pacific.
We are a Delaware corporation, with executive offices located at 1600 Smith
Street, Houston, Texas 77002. Our telephone number is (713) 324-2950.
THE TRUST
Continental Airlines Finance Trust III, which we refer to as the "trust,"
is a statutory business trust created under Delaware law through the filing of a
certificate of trust with the Delaware Secretary of State on October 18, 2001.
The trust's business is defined in a declaration of trust, dated as of October
18, 2001, executed by us, as sponsor, and the trustees. The declaration of trust
will be amended and restated in its entirety as of the date trust preferred
securities are initially issued. The declaration of trust, as amended and
restated, is referred to in this prospectus as the "trust agreement." The trust
agreement has been qualified under the Trust Indenture Act of 1939.
The trust exists for the exclusive purposes of:
- issuing and selling trust preferred securities and trust common
securities;
- using the proceeds from the sale of trust preferred securities and trust
common securities to acquire from us junior subordinated debentures,
referred to in this prospectus as "trust debentures;" and
- engaging in only those other activities necessary or incidental to these
purposes.
The trust's business and affairs will be conducted by its trustees, as
provided in the trust agreement. Unless otherwise indicated in the applicable
accompanying prospectus supplement, at the time of the issuance of trust
preferred securities, the initial trustees for the trust will be Bank One
Delaware, Inc., as Delaware trustee, Bank One Trust Company, N.A., as the
property trustee, and two or more individuals, who may be our employees, as
administrative trustees. The property trustee and the Delaware trustee, together
with the administrative trustees, are collectively referred to as the "trustees"
in this prospectus. We, as the holder of the common securities of the trust, or,
if an event of default under the trust agreement has occurred and is continuing,
the holders of not less than a majority in liquidation amount of the trust
preferred securities, will be entitled to appoint, remove or replace the
property trustee and the Delaware trustee. In no event will the holders of the
preferred securities have the right to vote to appoint, remove or replace the
administrative trustees. Such voting rights will be vested exclusively in us as
the holder of the common securities of the trust. The trust will have no assets
other than the trust debentures. The trust will have no revenue other than
payments under the trust debentures. We will pay all expenses of the trust.
4
We will, directly or indirectly, acquire all of the trust common securities
of the trust, which will have an aggregate liquidation amount equal to at least
3% of the total capital of the trust.
The rights of the holders of the trust preferred securities are set forth
in the trust agreement and the Delaware Business Trust Act. The term of the
trust will be set forth in the applicable prospectus supplement. The location of
the principal executive office of the trust is c/o Continental Airlines, Inc.,
1600 Smith Street, Houston, Texas 77002, and the telephone number is (713)
324-2950.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, we
intend to use the proceeds from the sale of the securities for general corporate
purposes, which may include repayment of indebtedness, selective acquisitions,
additions to our working capital, repurchases of our capital stock and capital
expenditures.
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of our "earnings" to our "combined fixed charges and preferred
stock dividends" for the six months ended June 30, 2001 and for each of the
years 1996 through 2000 were:
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED --------------------------------
JUNE 30, 2001 2000 1999 1998 1997 1996
---------------- ---- ---- ---- ---- ----
1.13 1.51 1.80 1.90 2.01 1.75
The ratios of earnings to combined fixed charges and preferred stock
dividends are based on continuing operations. For purposes of the ratios,
"earnings" means the sum of:
- our pre-tax income; and
- our fixed charges, net of interest capitalized.
"Combined fixed charges and preferred stock dividends" represent:
- the interest we pay on borrowed funds;
- the amount we amortize for debt discount, premium and issuance expense
and interest previously capitalized;
- that portion of rentals considered to be representative of the interest
factor; and
- preferred stock dividend requirements.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of our debt securities, consisting of notes, debentures or other evidences of
indebtedness, that we may offer by this prospectus. We will describe the
particular terms of debt securities, and provisions that vary from those
described below, in one or more prospectus supplements. Our junior subordinated
trust debentures that may be issued to Continental Airlines Finance Trust III in
connection with an offering of trust preferred securities are separately
described in this prospectus under the caption "Description of Trust
Debentures."
We may offer under this prospectus up to $500 million total principal
amount of debt securities, or its equivalent if debt securities are issued at a
discount or in a foreign currency or currency units. We may issue the debt
securities in registered or bearer form. The debt securities we offer pursuant
to this prospectus will be unsecured obligations unless otherwise specified in
the applicable prospectus supplement. We may issue the debt securities as
unsubordinated or senior debt securities, or as subordinated debt securities.
The senior debt securities will rank equally with all current and future
unsecured and unsubordinated indebtedness, and the
5
subordinated debt securities will be subordinated in right of payment to all our
senior indebtedness, as described below under "-- Subordination of Subordinated
Debt Securities."
As required by U.S. law, debt securities are governed by a document called
an "indenture." The indenture is a contract between us and an entity named in a
prospectus supplement which acts as trustee. The trustee has two main roles:
- the trustee can enforce your rights, including rights you have against us
if we default; and
- the trustee performs administrative duties for us, such as sending you
interest payments, transferring your debt securities to a new buyer if
you sell and sending you notices.
Senior debt securities will be issued under a senior debt indenture entered
into between us and Bank One, N.A., as trustee, dated as of July 15, 1997.
Subordinated debt securities will be issued under a subordinated debt indenture
between us and a trustee we name when the subordinated debt securities are
issued. The senior debt indenture and the subordinated debt indenture are
sometimes collectively referred to in this prospectus as the "indentures." We
have filed the senior indenture and a form of the subordinated indenture as
exhibits to this registration statement of which this prospectus is a part.
The following description is a summary of selected provisions relating to
the debt securities and the indentures. The summary is not complete. You should
not rely on this summary, because the indentures define your rights as a holder
of the debt securities.
GENERAL
The indentures do not limit the total principal amount of debt securities
that may be issued and provide that debt securities may be issued from time to
time in one or more series. We will set forth in a prospectus supplement a
description of the series of debt securities being offered, including some or
all of the following:
- the title of such debt securities;
- any limit upon the aggregate principal amount of such debt securities;
- the date or dates on which principal will be payable or how to determine
such dates;
- the rate or rates of interest or the method of determination of interest
rate; the date from which interest will accrue or the method by which
such date may be determined; the dates on which interest will be payable
("Interest Payment Dates"); and any record dates for the interest payable
on such Interest Payment Dates;
- any obligation or option we may have to redeem, purchase or repay debt
securities, or any option of the holder to require us to redeem or
repurchase debt securities, and the terms and conditions upon which such
debt securities will be redeemed, purchased or repaid;
- any rights of the holders of the debt securities to convert the debt
securities into other securities or property and the terms and conditions
governing such conversion or exchange;
- the denominations in which such debt securities will be issuable (if
other than denominations of $1,000 and any integral multiple thereof for
registered securities or if other than denominations of $5,000 for bearer
securities);
- whether such debt securities are to be issued in whole or in part in the
form of one or more global debt securities and, if so, the identity of
the depositary for such global debt securities;
- the currency and denominations of the debt securities;
- the principal amount of the debt securities payable upon declaration of
the acceleration of the maturity of the debt securities, if other than
100% of the principal amount;
- the person to whom any interest on any debt security will be payable, if
other than the person in whose name the debt security is registered on
the applicable record date;
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- any addition to, or modification or deletion of, any event of default or
any covenant with respect to the debt securities;
- the application, if any, of defeasance or covenant defeasance discussed
below;
- any provisions relating to the registration and exchange of the debt
securities; and
- any other terms of the series of debt securities.
The holders of our debt securities (whether senior or subordinated debt
securities) will be effectively subordinated to the creditors of our
subsidiaries because such creditors will have a direct claim against any assets
of such subsidiaries upon their liquidation or reorganization. By contrast, as a
holder of our debt securities (whether senior or subordinated debt securities),
you will have only an indirect claim against the assets of our subsidiaries that
derives through our ownership of the capital stock of our subsidiaries.
Consequently, as a holder of debt securities, your right to participate in those
assets will be effectively subordinated to the claims of that subsidiary's
creditors (including trade creditors).
Except as may be set forth in a prospectus supplement, the indentures also
do not limit the aggregate amount of unsecured indebtedness that we or our
subsidiaries may incur.
Unless we indicate differently in a prospectus supplement, the debt
securities will not be listed on any securities exchange and will be issued in
fully registered form without coupons. If debt securities are issued in bearer
form, we will set forth the special restrictions and considerations applicable
to such debt securities in a prospectus supplement. Bearer debt securities will
be transferable by delivery of the security by the transferring holder to the
new holder, and the transfer will not be registered or recorded by the trustee
or us.
We may sell the debt securities for an amount less than their stated
principal amount, bearing no interest or bearing a below market rate of
interest. We will provide you with information on the federal income tax
consequences and other special considerations applicable to any of these debt
securities in a prospectus supplement.
If the purchase price of any debt securities is payable in one or more
foreign currencies or currency units or if any debt securities are denominated
in one or more foreign currencies or currency units or if the principal of,
premium and/or interest, if any, on any debt securities is payable in one or
more foreign currencies or currency units, the restrictions, elections, federal
income tax considerations, specific terms and other information with respect to
the debt securities and such foreign currency or currency units will be set
forth in a prospectus supplement.
DENOMINATIONS, PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
We will issue registered debt securities in denominations of $1,000 and
multiples of $1,000, and we will issue bearer debt securities in $5,000
denominations or, in each case, in such other denominations and currencies
established by the terms of the debt securities of any particular series. Unless
we provide otherwise in a prospectus supplement, we will make payments in
respect of the debt securities, subject to any applicable laws and regulations,
in the designated currency and at the office or agency as we may designate from
time to time. At our option, however, we may make interest payments on debt
securities in registered form:
- by checks mailed by the trustee to the holders of the debt securities
entitled to payment at their registered addresses; or
- by wire transfer to an account maintained by the person entitled to
payment as specified in the register of the debt securities maintained by
the trustee.
We will pay installments of interest on debt securities:
- in registered form to the person in whose name the debt security is
registered at the close of business on the regular record date for such
interest, unless otherwise provided in a prospectus supplement; or
7
- in bearer form at such paying agencies outside the United States as we
may appoint from time to time, in the currency and in the manner
designated in a prospectus supplement, subject to any applicable laws and
regulations.
The paying agents outside the United States, if any, whom we initially
appoint for a series of debt securities will be named in a prospectus
supplement. We may at any time designate additional paying agents or rescind the
designation of any paying agents, provided that, in the case of:
- registered debt securities, we will be required to maintain at least one
paying agent in each place of payment for any series; and
- bearer debt securities, we will be required to maintain a paying agent in
a place of payment outside the United States where debt securities of any
series and any related coupons may be presented and surrendered for
payment.
We will have the right to require a holder of any debt security, in
connection with the payment of the principal of, premium and/or interest, if
any, on any debt security, to certify certain information to us for tax
purposes. In the absence of such certification, we will be entitled to rely on
any legal presumption to enable us to determine our duties and liabilities, if
any, to deduct or withhold taxes, assessments or governmental charges from such
payment.
Unless we provide otherwise in a prospectus supplement, you may transfer
debt securities in registered form at the agency we designate from time to time.
You will not be required to pay a service charge to transfer or exchange the
debt securities, but you may be required to pay for any tax or other
governmental charge imposed in connection with the transfer or exchange.
If we redeem only part of the debt securities of any series, we will not be
required to:
- issue, register the transfer of, or exchange debt securities of that
series during a period beginning at the opening of business 15 days
before any selection of debt securities of that series to be redeemed and
ending at the close of business on (A) the day of mailing of the relevant
notice of redemption, if debt securities of the series are issuable only
as registered debt securities, and (B) the day of the first publication
of the relevant notice of redemption, if debt securities of the series
are issuable as bearer debt securities, or the mailing of the relevant
notice of redemption, if debt securities of the series are also issuable
as registered debt securities and there is no publication;
- register the transfer of or exchange any registered debt securities
called for redemption or otherwise surrendered for repayment, except the
unredeemed or unrepaid portion of any registered security being redeemed
or repaid in part; or
- exchange any bearer security called for redemption, except to exchange
such bearer security for a registered security of that series and like
tenor which is immediately surrendered for redemption.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the applicable prospectus supplement, the
following provisions will apply to the subordinated debt securities.
The payment of the principal of, premium, and/or interest, if any, on, and
the redemption or repurchase of, the subordinated debt securities and coupons
will be subordinated and junior in right of payment, as set forth in the
subordinated indenture, to the prior payment in full of all our "senior
indebtedness" (as defined below). Generally, the subordinated debt securities
will rank pari passu with all of our existing and future subordinated
indebtedness other than any future subordinated indebtedness or other
subordinated obligations which we specify will rank junior to the subordinated
debt securities. Notwithstanding the foregoing, payment from the money or the
proceeds of U.S. government obligations held in any defeasance trust described
under "-- Defeasance" below is not subordinate to any senior indebtedness or
subject to the restrictions described herein.
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Senior indebtedness consists of the following types of obligations, in each
case subject to the exceptions enumerated below:
- the principal, premium, if any, interest and other amounts in respect of
(A) our indebtedness for money borrowed and (B) our indebtedness
evidenced by securities, debentures, bonds or other similar instruments
issued by us, in each case that is not, by its terms, subordinated to
other indebtedness;
- all of our capital lease obligations;
- all of our obligations issued or assumed as the deferred purchase price
of property;
- all of our conditional sale obligations;
- all of our obligations under any title retention agreement (excluding
trade accounts payable arising in the ordinary course of business);
- all of our obligations for the reimbursement on any letter of credit,
bankers acceptance, security purchase facility or similar credit
transaction;
- all obligations (of the type referred to in the first six bullet points
above) of other persons for which we are responsible or liable as
obligor, guarantor or otherwise; and
- all obligations (of the type referred to in the first six bullet points
above) of other persons secured by any lien on any of our properties or
assets (whether or not such obligation is assumed by us).
Except as set forth in the applicable prospectus supplement, senior
indebtedness will not include the following:
- indebtedness that is subordinated to or pari passu with the subordinated
debt securities;
- indebtedness between or among us and our affiliates that ranks pari passu
with, or junior to the subordinated debt securities;
- our guarantee of certain payments under the 6% Convertible Preferred
Securities, Term Income Deferrable Equity Securities (TIDES) of
Continental Airlines Finance Trust II;
- our 6% Convertible Junior Subordinated Debentures due 2030; and
- the trust debentures and the trust preferred securities registered
hereunder.
The senior indebtedness will continue to be entitled to the benefits of the
subordination provisions irrespective of any amendment, modification or waiver
of any term of the senior indebtedness. Except as set forth in the applicable
prospectus supplement, the payment of the principal of, premium, if any, and
interest, if any on the subordinated debt securities and coupons will rank
senior in right of payment to our guarantee of certain payments under the 6%
Convertible Preferred Securities, Term Income Deferrable Equity Securities
(TIDES) of Continental Airlines Finance Trust II, our 6% Convertible Junior
Subordinated Debentures due 2030 and the trust debentures and the trust
preferred securities registered hereunder.
No payment on account of principal of, premium, if any, or interest on, or
redemption or repurchase of, the subordinated debt securities or any coupon or
any deposit pursuant to the provisions described under "-- Defeasance" below may
be made by us if there is a default in the payment of principal, premium, if
any, sinking funds or interest (including a default under any repurchase or
redemption obligation) or other amounts with respect to any senior indebtedness.
Similarly, no payment may be made if any other event of default with respect to
any senior indebtedness, permitting the holders of senior indebtedness to
accelerate the maturity thereof, shall have occurred and shall not have been
cured, waived or ceased to exist after written notice to us and the trustee by
any holder of senior indebtedness. Upon any acceleration of the principal due on
the subordinated debt securities or payment or distribution of our assets to
creditors upon any dissolution, winding up, liquidation or reorganization, all
principal, premium, if any, sinking funds and interest or other amounts due on
all senior indebtedness must be paid in full before the holders of the
subordinated debt securities are entitled to receive any payment. Because of
such subordination, if we become insolvent, our creditors who are holders of
senior indebtedness may recover more, ratably, than the holders of the
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subordinated debt securities. Furthermore, such subordination may result in a
reduction or elimination of payments to the holders of the subordinated debt
securities.
The subordinated indenture does not limit our ability to incur senior
indebtedness or any other indebtedness.
GLOBAL DEBT SECURITIES
The debt securities of a series may be issued in whole or in part in global
form that will be deposited with a depositary or with a nominee for the
depositary identified in a prospectus supplement. In such case, one or more
registered global securities will be issued in a denomination or aggregate
denominations equal to the portion of the total principal amount of outstanding
debt securities of the series to be represented by such registered global
security or securities. Unless and until it is exchanged in whole or in part for
debt securities in definitive form, a registered global security may not be
registered for transfer or exchange except as a whole by the depositary, the
depositary's nominee or their respective successors as described in the
applicable prospectus supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of debt securities to be represented by a registered global
security will be described in a prospectus supplement. We expect that the
following provisions will apply to depositary arrangements.
Upon the issuance of any registered global security, and the deposit of
such security with or on behalf of the appropriate depositary, the depositary
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the debt securities represented by such registered global
security to the accounts of institutions or participants that have accounts with
the depositary or its nominee. The accounts to be credited will be designated by
the underwriters or agents engaging in the distribution of the debt securities
or by us, if we offer and sell such debt securities directly.
Ownership of beneficial interests in a registered global security will be
limited to participants of the depositary (which are usually large investment
banks, retail brokerage firms, banks and other large financial institutions) and
persons that hold interests through participants. Ownership of beneficial
interests by participants in a registered global security will be shown on, and
the transfer of that ownership interest will be effected only through, records
maintained by the depositary for that security or its nominee. Ownership of
beneficial interests in a registered global security by persons who hold through
participants will be shown on, and the transfer of that ownership interest
within that participant will be effected only through, records maintained by
that participant. The laws of some jurisdictions require that certain purchasers
of securities take physical delivery of securities in certificated form. The
foregoing limitations and such laws may impair the ability to transfer
beneficial interests in registered global securities.
So long as the depositary for a registered global security, or its nominee,
is the registered owner of a registered global security, that depositary or
nominee, as the case may be, will be considered the sole owner or holder of the
debt securities represented by that registered global security. Unless otherwise
specified in a prospectus supplement and except as specified below, owners of
beneficial interests in a registered global security will not:
- be entitled to have the debt securities of the series represented by the
registered global security registered in their names;
- receive or be entitled to receive physical delivery of the debt
securities of such series in certificated form; or
- be considered the holders of the debt securities for any purposes under
the indentures.
Accordingly, each person owning a beneficial interest in a registered
global security must rely on the procedures of the depositary and, if such
person is not a participant, on the procedures of the participant through which
such person owns its interest, to exercise any rights of a holder under the
indentures.
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The depositary may grant proxies and otherwise authorize participants to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action which a holder is entitled to give or take under the
indentures. Unless otherwise specified in a prospectus supplement, payments with
respect to principal, premium and/or interest, if any, on debt securities
represented by a registered global security registered in the name of a
depositary or its nominee will be made to such depositary or its nominee, as the
case may be, as the registered owner of such registered global security.
We expect that the depositary for any debt securities represented by a
registered global security, upon receipt of any payment of principal, premium or
interest, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of a registered global security as shown on the records of such
depositary. We also expect that payments by participants to owners of beneficial
interests in a registered global security held through participants will be
governed by standing instructions and customary practices in the securities
industry, as is now the case with the securities held for the accounts of
customers registered in "street names," and will be the responsibility of such
participants. Neither we nor the trustee or any agent of ours will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a registered
global security, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Unless otherwise specified in a prospectus supplement, if the depositary
for any debt securities represented by a registered global security is at any
time unwilling or unable to continue as depositary and a successor depositary is
not appointed by us within 90 days, we will issue debt securities in
certificated form in exchange for a registered global security. In addition, we
may at any time and in our sole discretion determine not to have any of the debt
securities of a series represented by one or more registered global securities
and, in such event, will issue debt securities of such series in certificated
form in exchange for all of the registered global securities representing debt
securities. Further, if we so specify with respect to the debt securities of a
series, an owner of a beneficial interest in a registered global security
representing such series of debt securities may receive, on terms acceptable to
us and the depositary for such registered global security, debt securities of
such series in certificated form registered in the name of such beneficial owner
or its designee.
CONSOLIDATION, MERGER AND CONVEYANCE OF ASSETS AS AN ENTIRETY
Each indenture provides that we will not consolidate with or merge into any
other entity or sell, convey, transfer, lease or otherwise dispose of all or
substantially all our properties and assets unless:
- the entity formed by such consolidation or into which we are merged or
the entity which acquires or which leases our property and assets
substantially or as an entirety is a corporation organized and existing
under the laws of the United States of America or any state thereof or
the District of Columbia, and expressly assumes by supplemental
indenture, all our obligations under the debt securities, any related
coupons and our obligations under the indenture;
- immediately after giving effect to such transactions, no Event of Default
or Default shall have occurred and be continuing; and
- certain other conditions are met.
If a successor corporation assumes our obligations, the successor will
succeed to and be substituted for us under the indentures, the debt securities
and any related coupons. Consequently, all of our obligations will terminate. If
any such permitted consolidation, merger, sale, conveyance, disposition or other
change of control transaction occurs, the holders of the debt securities will
not have the right to require redemption of their securities or similar rights
unless otherwise provided in a prospectus supplement.
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EVENTS OF DEFAULT
An "Event of Default" occurs with respect to debt securities of any series
if any of the following occurs:
- we fail to pay any interest on any debt securities of the applicable
series or any related coupon or any other amount applicable to such
series as specified in the applicable prospectus supplement within 30
days of the due date;
- we fail to pay principal or premium on any debt securities of the
applicable series on its due date;
- we fail to deposit any sinking fund payment when and as due by the terms
of the debt securities of that series;
- we default for 60 days after notice to us by the trustee for such series,
or by the holders of 25% in aggregate principal amount of the debt
securities of such series then outstanding, in the performance of any
other agreement applicable to the debt securities of that series; and
- certain events in bankruptcy, insolvency or reorganization occur; or
- any other Event of Default specified in the prospectus supplement
applicable to such series occurs.
An Event of Default with respect to a particular series of debt securities
will not necessarily be an Event of Default with respect to any other series of
debt securities.
The indentures provide that, if an Event of Default occurs with respect to
the debt securities of any series and is continuing, the trustee for the series
or the holders of 25% in aggregate principal amount of all of the outstanding
debt securities of that series, by written notice to us (and to the trustee for
such series, if notice is given by the holders of debt securities), may declare
the principal (or, if the debt securities of that series are original issue
discount debt securities or indexed debt securities, such portion of the
principal amount specified in the prospectus supplement) of all the debt
securities of that series to be due and payable.
The indentures provide that the trustee for any series of debt securities
will give to the holders of the debt securities of that series notice of all
uncured Defaults (as defined below) within 90 days after the occurrence of a
Default. However, such notice will not be given until 60 days after the
occurrence of a Default with respect to the debt securities of that series
involving a failure to perform a covenant other than the obligation to pay
principal, premium, and/or interest, if any, or make a mandatory sinking fund
payment. Further, except in the case of default in payment on the debt
securities of that series, the trustee may withhold the notice if and so long as
a committee comprised of certain officers of the trustee determines in good
faith that withholding such notice is in the interest of the holders of the debt
securities of that series. "Default" means any event which is, or, after notice
or passage of time or both, would be, an Event of Default.
Under the indentures, the trustee is under no obligation to exercise any of
its rights or powers at the request of any of the holders, unless such holders
have offered to the trustee reasonable indemnity. Subject to such provision for
indemnification, the indentures provide that the holders of not less than a
majority in aggregate principal amount of the debt securities of each series
affected with each series voting as a class, may direct the time, method and
place of conducting any proceeding for any remedy available to the trustee for
such series, or exercising any trust or power conferred on such trustee. We are
required to file annually with the trustee a certificate as to our compliance
with all conditions and covenants under indentures, except an Event of Default
based on the payment of the principal of, premium, if any, or interest, if any,
on any debt security of a series and certain other defaults.
By notice to the trustee, the holders of not less than a majority in total
principal amount of any series of debt securities may waive any past Default or
Event of Default with respect to that series and its consequences. Further, such
majority holders may rescind and annul a declaration of acceleration with
respect to that series (unless a judgment or decree based on such acceleration
has been obtained and entered), except an acceleration based on an Event of
Default in the payment of the principal of, premium, if any, or interest, if
any, on any debt security (and any resulting acceleration) and certain other
defaults.
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MODIFICATION OF INDENTURE
Without Holder Consent. Without the consent of any holders of debt
securities, we and the trustee may enter into one or more supplemental
indentures for any of the following purposes:
- to evidence the succession of another entity to our company and the
assumption of our covenants by a successor; or
- to add one or more covenants or other provisions for the benefit of the
holders of all or any series or tranche of debt securities, or to
surrender any right or power conferred upon us; or
- to add any additional Events of Default for all or any series of debt
securities; or
- to add or change any provisions to such extent as necessary to permit or
facilitate the issuance of debt securities in bearer or in global form;
or
- to provide security for the debt securities of any series; or
- to establish the form or terms of debt securities of any series bearer or
in global form; or
- to provide for the issuance of bearer securities; or
- to evidence and provide for the acceptance of appointment of a separate
or successor trustee; or
- under certain circumstances to add to, change or eliminate any provision
affecting debt securities not yet issued; or
- to cure any ambiguity, defect, correct or inconsistency or to make any
other changes that do not adversely affect the interests of the holders
of debt securities of any series issued under such indenture in any
material respect.
If the Trust Indenture Act is amended after the date of the indenture so as
to require changes to the indentures or so as to permit changes to, or the
elimination of, provisions which, at the date of the indentures or at any time
thereafter, were required by the Trust Indenture Act to be contained in the
indentures, the indentures will be deemed to have been amended so as to conform
to such amendment or to effect such changes or elimination, and we and the
trustee may, without the consent of any holders, enter into one or more
supplemental indentures to effect or evidence such amendment.
With Holder Consent. Except as provided above, the consent of the holders
of at least a majority in aggregate principal amount of the debt securities of
each series affected by such supplemental indenture is generally required for
the purpose of adding to, or changing or eliminating any of the provisions of,
the debt securities pursuant to a supplemental indenture. However, no amendment
or modification may, without the consent of the holder of each outstanding debt
security directly affected thereby,
- change the stated maturity of the principal or interest on any debt
security (other than pursuant to the terms thereof), or reduce the
principal amount, interest or premium payable or change the currency in
which any debt security is payable, or impair the right to bring suit to
enforce any payment; or
- reduce the percentages of holders whose consent is required to modify or
amend the indentures of compliance with certain provisions of the
indentures or for waiver of certain defaults; or
- reduce the premium, if any, upon redemption of any debt security; or
- reduce principal payable upon acceleration of the maturity of an original
issue discount debt security; or
- change our obligation to maintain an office or agency in the places and
for the purposes specified in the indentures; or
- modify any of the foregoing provisions.
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A supplemental indenture which changes or eliminates any provision of the
indenture expressly included solely for the benefit of holders of debt
securities of one or more particular series or tranches will be deemed not to
affect the rights under the indenture of the holders of debt securities of any
other series or tranche.
DEFEASANCE
If indicated in the applicable prospectus supplement, we will have two
options to discharge our obligations under a series of debt securities before
their maturity date. We may elect either:
- to defease and be discharged from any and all obligations with respect to
the debt securities of or within any series (except as described below)
("defeasance"); or
- to be released from our obligations with respect to certain covenants
applicable to the debt securities of or within any series ("covenant
defeasance").
To elect either option, we must deposit with the trustee for such series an
amount of money and/or government obligations sufficient to pay the principal
of, premium and/or interest, if any, on such debt securities to maturity or
redemption, as the case may be, and any mandatory sinking fund or analogous
payments.
Upon the occurrence of a defeasance, we will be deemed to have paid and
discharged the entire indebtedness represented by the debt securities and any
related coupons and to have satisfied all of our obligations, except for:
- the rights of holders of the debt securities to receive, solely from the
trust funds deposited to defease such debt securities, payments in
respect of the principal of, premium, and/or interest, if any, on the
debt securities or any related coupons when such payments are due; and
- certain other obligations as provided in the indentures.
Upon the occurrence of a covenant defeasance, we will:
- be released only from our obligations to comply with certain covenants
contained in the indentures;
- continue to be obligated in all other respects under the debt securities;
and
- continue to be contingently liable with respect to the payment of
principal, premium and/or interest, if any, with respect to the debt
securities.
Unless otherwise specified in the applicable prospectus supplement and
except as described below, the conditions to both defeasance and covenant
defeasance are as follows:
- the defeasance or covenant defeasance must not result in a breach or
violation of, or constitute a default or event of default under, the
applicable indenture;
- certain bankruptcy related defaults or events of default must not have
occurred and be continuing during the period commencing on the date of
the deposit of the trust funds to defease the debt securities and ending
on the 91st day after such date;
- we must deliver to the trustee an opinion of counsel to the effect that
the holders of the debt securities will not recognize income, gain or
loss for federal income tax purposes as a result of the defeasance or
covenant defeasance and will be subject to federal income tax on the same
amounts and in the same manner and at all the same times as would have
been the case if the defeasance or covenant defeasance had not occurred;
and
- any additional conditions to the defeasance or covenant defeasance which
may be imposed on us pursuant to the applicable indenture.
A nationally recognized firm of independent public accountants must deliver
a written certification to the trustee as to the sufficiency of the trust funds
deposited for the defeasance or covenant defeasance of the debt securities. As
holders of the debt securities, you will not have any recourse against such
firm. If government
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obligations deposited with the trustee for the defeasance of the debt securities
decrease in value or default subsequent to their being deposited, we will have
no further obligation, and you will have no additional recourse against us, as a
result of such decrease in value or default.
We may exercise our defeasance option notwithstanding our prior exercise of
our covenant defeasance option. If we exercise our defeasance option, payment of
the debt securities may not be accelerated because of a Default or an Event of
Default. If we exercise our covenant defeasance option, payment of the debt
securities may not be accelerated by reason of a Default or an Event of Default
with respect to the covenants to which such covenant defeasance is applicable.
However, if such acceleration were to occur, the realizable value at the
acceleration date of the money and government obligations in the defeasance
trust could be less than the principal and interest, if any, then due on such
debt securities, because the required deposit in the defeasance trust is based
upon scheduled cash flow rather than market value, which will vary depending
upon interest rates and other factors.
A prospectus supplement may further describe the provisions, if any,
applicable to defeasance or covenant defeasance with respect to debt securities
of a particular series.
THE TRUSTEE
The initial trustee under the senior debt indenture is Bank One, N.A. The
trustee under the subordinated debt indenture will be named when the
subordinated debt securities are issued. If more than one series of debt
securities is outstanding under an indenture, a trustee may serve as trustee
with respect to the debt securities of one or more of such series. If more than
one series of debt securities is outstanding under an indenture, the holders of
a majority in total principal amount of each such series at any time outstanding
may remove the trustee with respect to such series (but not as to any other
series) by notifying the trustee and us and may appoint a successor trustee for
such series with our consent.
DESCRIPTION OF TRUST SECURITIES
The trust may issue trust preferred securities and trust common securities,
which we refer to collectively as the "trust securities," under the terms of the
trust agreement. The trust preferred securities will represent undivided
beneficial interests in the assets of the trust. We will own all of the trust
common securities. Selected provisions of the trust agreement are summarized
below. This summary is not complete and contains only a general description of
the trust preferred securities. Any of the following terms may be changed, as
set forth in a prospectus supplement. A form of trust agreement has been filed
with the SEC, and you should read the trust agreement for provisions that may be
important to you. A definitive form of trust agreement will be filed with the
SEC when we issue trust preferred securities. The trust agreement will be
qualified under the Trust Indenture Act. You should also refer to the Trust
Indenture Act for provisions that apply to the trust preferred securities.
Wherever particular defined terms of the trust agreement are referred to, such
defined terms are incorporated herein by reference.
GENERAL
The trust preferred securities and trust common securities issued by the
trust will be substantially the same except that, if there is an event of
default under the trust agreement, as described below, the rights of the holders
of the trust preferred securities will be entitled to priority in right of
payment over our rights as holders of the trust common securities.
The trust will invest the proceeds from any issuance of the trust preferred
securities, together with the consideration we pay for the trust common
securities to purchase trust debentures from us. Legal title in the trust
debentures will be held by the property trustee in trust for the benefit of
holders of the trust securities.
In accordance with the trust agreement, the trust may not, among other
things, borrow money, issue debt or any securities other than the trust
securities, execute mortgages or pledge any of its assets.
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We will guarantee distributions on the trust preferred securities on a
limited basis to the extent described under the caption "Description of
Guarantee." The guarantee will not guarantee payment of distributions or amounts
payable on redemption of the trust preferred securities or liquidation of the
trust when the trust does not have funds on hand legally available for such
payments. In such event, a remedy of a holder of trust preferred securities is
to direct the property trustee to enforce its rights under the trust debentures.
If the property trustee fails to enforce its rights with respect to the trust
debentures held by the trust, any record holder of the trust preferred
securities may, to the fullest extent permitted by law, institute legal
proceedings directly against us to enforce the property trustee's rights under
such trust debentures without first instituting any legal proceedings against
the property trustee or any other person or entity. In addition, a holder of the
trust preferred securities may institute a legal proceeding directly against us
for enforcement of payment to such holder of principal of, premium, if any, or
interest on the trust debentures having a principal amount equal to the
aggregate liquidation amount of the trust preferred securities of such holder on
or after the due date specified in the trust debentures.
Holders of the trust preferred securities will have no preemptive or
similar rights.
DISTRIBUTIONS
Distributions on the trust preferred securities will be payable on the
dates and at the rates set forth in a prospectus supplement. The distribution
rate and the relevant distribution date for the trust securities will correspond
to the payments and payment dates on the trust debentures. The revenue of the
trust available for distribution to holders of the trust preferred securities
will be limited to payments under the trust debentures in which the trust will
invest the proceeds from the issuance and sale of the trust securities. If we
fail to make interest payments on the trust debentures, the property trustee
will not have funds available to pay distributions on the trust preferred
securities.
Unless otherwise specified in the applicable prospectus supplement, we may
defer the payment of interest on the trust debentures on one or more occasions
for a period not exceeding 10 consecutive semi-annual periods (or the equivalent
thereof), unless a debenture event of default has occurred and is continuing.
However, no deferral period shall extend beyond the stated maturity date.
Distributions on the trust preferred securities will be deferred by the trust
during any such deferral period. Distributions to which holders of the trust
preferred securities are entitled during any such deferral period will
accumulate additional distributions at the rate per annum set forth in the
prospectus supplement.
Upon the termination of any deferral period and the payment of all amounts
then due on any interest payment date, we may elect to begin a new deferral
period, subject to the requirements described above. No interest shall be due
and payable during any deferral period, except at the end of the period.
We must give the property trustee, the debenture trustee and the
administrative trustees notice of our election to defer the payment of interest
on the trust debentures at least one business day prior to the earlier of:
- the date the distributions on the trust preferred securities would have
been payable except for the election to begin such deferral period; or
- the date the administrative trustees are required to give notice to any
securities exchange or to holders of trust preferred securities of the
record date or the date such distributions are payable, but in any event
not less than one business day prior to such record date.
There is no limitation on the number of times that we may elect to begin a
deferral period. Accordingly, there could be multiple deferral periods of
varying lengths throughout the term of the trust preferred securities. See
"Description of Trust Debentures -- Option to Extend Interest Payment Date."
Unless otherwise specified in the applicable prospectus supplement, during
any deferral period, we may not do any of the following:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of our
capital stock -- subject to certain exceptions described under
"Description of Trust Debentures -- Restrictions on Certain Payments";
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- make any payment of principal of or premium, if any, or interest on or
repay, repurchase or redeem any of our debt securities that rank pari
passu with or junior in right of payment to the trust debentures; or
- make any guarantee payments (other than payments under the guarantee)
with respect to any guarantee by us of the debt securities of any of our
subsidiaries if such guarantee ranks pari passu with or junior in right
of payment to the trust debentures.
CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable prospectus supplement, the
trust securities of any series may be convertible or exchangeable into other
debt or equity securities or property. The specific terms on which the trust
securities may be so converted or exchanged will be set forth in the applicable
prospectus supplement. Such terms may include provisions for conversion or
exchange, either mandatory, at the option of the holder, or at our option, in
which case the number or amount of securities or property to be received by the
holders of the trust securities would be calculated as of a time and in the
manner stated in the applicable prospectus supplement.
ADDITIONAL SUMS
Except as set forth in the applicable prospectus supplement, we will pay as
additional amounts in the trust debentures such additional amounts as may be
necessary in order that the amount of distributions then due and payable by the
trust on the outstanding trust securities will not be reduced as a result of any
additional taxes, duties and other governmental charges.
REDEMPTION
Whenever the trust debentures are repaid, other than following the
distribution of the trust debentures to the holders of the trust securities,
whether at maturity or earlier redemption, the property trustee will apply the
proceeds to redeem a like amount of the trust securities at the applicable
redemption price specified in the applicable prospectus supplement.
"Like amount" means:
- with respect to a redemption of the trust securities, trust securities
having a liquidation amount equal to the principal amount of trust
debentures to be paid in accordance with their terms; and
- with respect to a distribution of trust debentures upon the dissolution
and liquidation of the trust, trust debentures having a principal amount
equal to the liquidation amount of the trust securities of the holder to
whom such trust debentures are being distributed.
REDEMPTION PROCEDURES
If applicable, trust securities will be redeemed at the applicable
redemption price with the proceeds from the contemporaneous repayment or
prepayment of the trust debentures. Any redemption of trust securities will be
made and the applicable redemption price will be payable on the redemption date
only to the extent that the trust has funds legally available for the payment of
the applicable redemption price. See also "-- Subordination of Trust Common
Securities."
If the trust gives a notice of redemption in respect of the trust preferred
securities, then, by 12:00 noon, New York City time, on the redemption date, to
the extent funds are legally available, with respect to the trust preferred
securities held by DTC or its nominees, the property trustee will deposit with
DTC funds sufficient to pay the applicable redemption price. See "-- Form,
Denomination, Book-Entry Procedures and Transfer." With respect to the trust
preferred securities held in certificated form, the property trustee, to the
extent funds are legally available, will pay the applicable redemption price to
the holders of trust preferred securities upon surrender of the security. See
"-- Payment and Paying Agency." Notwithstanding the foregoing, distributions
payable on or prior to the redemption date shall be payable to the holders of
such trust preferred securities on the relevant record dates for the related
distribution dates. If notice of redemption has been given and funds
17
are deposited as required, then on the date of such deposit, all rights of the
holders of the trust preferred securities called for redemption will cease,
except the right of the holders of the trust preferred securities to receive the
applicable redemption price, and the trust preferred securities will cease to be
outstanding.
If any redemption date of trust preferred securities is not a business day,
then the redemption price will be paid on the next day that is a business day.
If the next business day falls in the next calendar year, then the required
payment will be made on the immediately preceding business day.
Subject to applicable law, our subsidiaries or we may, from time to time
purchase outstanding trust preferred securities by tender, in the open market or
by private agreement.
The trust may not redeem fewer than all of the outstanding trust preferred
securities unless all accumulated and unpaid distributions have been paid on all
trust preferred securities for all distribution periods terminating on or prior
to the redemption date. If less than all of the issued trust preferred
securities and trust common securities are to be redeemed on a redemption date,
then the aggregate amount of such trust preferred securities and trust common
securities to be redeemed shall be allocated pro rata among the trust preferred
securities and the trust common securities. The property trustee will select on
a pro rata basis the particular outstanding trust preferred securities to be
redeemed not more than 60 days prior to the redemption date, by such method as
the property trustee shall deem fair and appropriate. The property trustee will
promptly notify the trust registrar in writing of the trust preferred securities
selected for redemption and, in the case of any trust preferred security
selected for partial redemption, the liquidation amount to be redeemed. For all
purposes of the trust agreement, unless the context otherwise requires, all
provisions relating to the redemption of trust preferred securities will relate,
in the case of any trust preferred security redeemed or to be redeemed only in
part, to the portion of the aggregate liquidation amount of trust preferred
securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of trust securities at its
registered address. Unless we default in payment of the applicable redemption
price on, or in the repayment of, the trust debentures, on and after the
redemption date distributions will cease to accrue on the trust securities
called for redemption.
CANCELLATION
If at any time we or any of our affiliates hold any trust preferred
securities, we may deliver to the property trustee all or any portion of such
trust preferred securities as we elect and receive, in exchange therefore, a
like amount of debentures. After the exchange, such trust preferred securities
will be cancelled and will no longer be deemed to be outstanding and all rights
of ours or our affiliates with respect to such trust preferred securities will
cease.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF TRUST DEBENTURES
The trust will automatically dissolve upon the first to occur of:
- our bankruptcy, dissolution or liquidation or revocation of our charter
without reinstatement for 90 days;
- the expiration of the term of the trust;
- the entry of an order for dissolution of the trust by a court of
competent jurisdiction;
- if we direct the property trustee in writing to dissolve the trust and
distribute a like amount of the trust debentures to the holders of the
trust securities; and
- redemption, or conversion or exchange, if applicable, of all of the trust
securities.
Unless otherwise specified in the prospectus supplement, we have the right
at any time to dissolve the trust and, after satisfaction of liabilities to
creditors of the trust, cause the trust debentures to be distributed to the
holders of the trust securities in liquidation of the trust.
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If a dissolution occurs as described in bullet points one through three
above, the trust will be liquidated by the administrative trustees as
expeditiously as possible. After satisfaction of liabilities to the trust's
creditors, the administrative trustees will distribute to the holders of the
trust securities a like amount of the trust debentures, unless such distribution
is determined by the property trustee not to be practicable. In such case, the
holders will be entitled to receive pro rata out of the assets of the trust
legally available for distribution to holders an amount equal to the aggregate
of the liquidation amount plus accumulated and unpaid distributions thereon to
the date of payment. If this liquidation distribution can be paid only in part
because the trust has insufficient assets on hand legally available to pay in
full the aggregate liquidation distribution, then the amount payable directly by
the trust on the trust securities will be paid on a pro rata basis, except that
if a debenture event of default has occurred and is continuing, the trust
preferred securities shall have a priority over the trust common securities. See
"-- Subordination of Trust Common Securities."
If we elect not to redeem the trust debentures before maturity in
accordance with their terms and either elect not to or are unable to dissolve
and liquidate the trust and distribute the trust debentures to holders of the
trust securities, the trust securities will remain outstanding until the
repayment of the trust debentures on the stated maturity date.
After the liquidation date is fixed for any distribution of trust
debentures to holders of the trust securities,
- the trust securities will no longer be deemed to be outstanding;
- DTC or its nominee will receive, in respect of each registered global
certificate, if any, representing trust securities and held by it, a
registered global certificate or certificates representing the trust
debentures to be delivered upon such distribution; and
- any certificates representing trust securities not held by DTC or its
nominee will be deemed to represent trust debentures having a principal
amount equal to the liquidation amount of such trust securities until
such certificates are presented to the administrative trustees or their
agent for cancellation. We will then issue to such holder, and the
debenture trustee will authenticate, a certificate representing such
trust debentures.
SUBORDINATION OF TRUST COMMON SECURITIES
Payment of distributions on, and the redemption price of, the trust
securities will be made pro rata based on the liquidation amount of the trust
securities. However, if on any distribution date or redemption date a debenture
event of default has occurred and is continuing, no payment of any distribution
on, or applicable redemption price of, any of the trust common securities, and
no other payment on account of the redemption, liquidation or other acquisition
of the trust common securities, will be made unless payment in full in cash of
all accumulated and unpaid distributions on all of the outstanding trust
preferred securities for all distribution periods terminating on or prior
thereto, or in the case of payment of the applicable redemption price the full
amount of such redemption price, shall have been made or provided for, and all
funds available to the property trustee shall first be applied to the payment in
full in cash of all distributions on, or redemption price of, the trust
preferred securities then due and payable.
In the case of any event of default under the trust agreement, we, as
holder of the trust common securities, will be deemed to have waived any right
to act with respect to such event of default until the effect of such event of
default with respect to the trust preferred securities is cured, waived or
otherwise eliminated. Until any such event of default is so cured, waived or
otherwise eliminated, the property trustee will act solely on behalf of the
holders of the trust preferred securities and not on behalf of us, as holder of
the trust common securities, and only the holders of the trust preferred
securities will have the right to direct the property trustee to act on their
behalf.
EVENTS OF DEFAULT; NOTICE
The occurrence of a debenture event of default constitutes an event of
default under the trust agreement. See "Description of Trust
Debentures -- Debenture Events of Default."
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Within five business days after the occurrence of any trust agreement event
of default actually known to the property trustee, the property trustee will
transmit notice of such default to the holders of the trust preferred
securities, the administrative trustees and us, unless such default is cured or
waived. We and the administrative trustee are required to file annually with the
property trustee a certificate as to whether or not we are in compliance with
all the conditions and covenants under the trust agreement.
Upon the occurrence of a trust agreement event of default, the debenture
trustee or the property trustee as the holder of the trust debentures will have
the right under the junior subordinated indenture to declare the principal of
and interest on the trust debentures to be immediately due and payable.
If a trust agreement event of default has occurred and is continuing and
such event is attributable to our failure to pay interest, principal or other
required payments on the trust debentures issued to the trust on the date such
interest, principal or other payment is otherwise payable, then a record holder
of trust preferred securities may, on or after the respective due dates
specified in the trust debentures, institute a proceeding directly against us
for enforcement of payment on trust debentures having a principal amount equal
to the aggregate liquidation amount of the trust preferred securities held by
such holder. In connection with such an action, we will be subrogated to the
rights of such record holder of trust preferred securities to the extent of any
payment made by us to such record holder of trust preferred securities.
If a debenture event of default has occurred and is continuing, the trust
preferred securities shall have a preference over the trust common securities as
described under "-- Liquidation of the Trust and Distribution of Trust
Debentures" and "-- Subordination of Trust Common Securities."
REMOVAL OF TRUSTEES
Unless a debenture event of default occurs and is continuing, any
administrative trustee may be removed at any time by the holder of the trust
common securities. If a debenture event of default has occurred and is
continuing, the property trustee and the Delaware trustee may be removed at such
time by the holders of a majority in liquidation amount of the outstanding trust
preferred securities. In no event will the holders of the trust preferred
securities have the right to vote to appoint, remove or replace the
administrative trustees, which voting rights are vested exclusively in the
holder of the trust common securities. No resignation or removal of a trustee
and no appointment of a successor trustee shall be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the trust agreement.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any corporation or
other person, except as described below or as otherwise described under
"-- Liquidation of the Trust and Distribution of Trust Debentures." The trust
may, at our request and with the consent of the administrative trustees but
without the consent of the holders of the trust preferred securities, the
Delaware trustee or the property trustee, merge with or into, convert into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to a trust
organized as such under the laws of any state of the United States or the
District of Columbia; provided that:
- such successor entity either:
- expressly assumes all of the obligations of the trust with respect to
the trust securities and the trust agreement; or
- substitutes for the trust securities other securities having
substantially the same terms as the trust securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
trust securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise;
- we expressly appoint a trustee of such successor entity possessing the
same powers and duties as the property trustee as the holder of the trust
debentures;
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- the Successor Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national securities exchange
or other organization on which the trust securities are then listed or
quoted, if any;
- if the trust preferred securities (including any Successor Securities)
are rated by any nationally recognized statistical rating organization
prior to such transaction, such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause
the trust preferred securities (including any Successor Securities) or,
if the trust debentures are so rated, the trust debentures, to be
downgraded by any such nationally recognized statistical rating
organization;
- such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the trust securities
(including any Successor Securities) in any material respect;
- such successor entity has a purpose substantially identical to that of
the trust;
- prior to such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, we have received an opinion
from independent counsel to the trust experienced in such matters to the
effect that:
- such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the trust securities
(including any Successor Securities) in any material respect (other than
by reason of dilution); and
- following such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease,
- neither the trust nor such successor entity will be required to
register as an investment company under the Investment Company Act of
1940; and
- the trust or the successor entity will continue to be classified as a
grantor trust for United States federal income tax purposes; and
- we or any permitted successor or assignee own all of the trust common
securities of such successor entity and guarantee the obligations of such
successor entity under the Successor Securities at least to the extent
provided by the guarantee and the common guarantee.
Notwithstanding the foregoing, the trust will not, except with the consent
of holders of 100% in liquidation amount of the trust securities, consolidate,
convert into, amalgamate, merge with or into, convert into, or be replaced by or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to, any other entity or permit any other entity to
consolidate, convert into, amalgamate, merge with or into, or replace it if such
consolidation, conversion, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the trust or the successor entity not to be
classified as a grantor trust for United States federal income tax purposes or
would cause the holders of the trust securities not to be treated as owning an
undivided interest in the trust debentures.
VOTING RIGHTS; AMENDMENT OF THE TRUST AGREEMENT
Except as provided below and under "-- Mergers, Consolidations,
Amalgamations or Replacements of the Trust" and "Description of
Guarantee -- Amendments and Assignment" and as otherwise required by law and the
trust agreement, the holders of the trust preferred securities will have no
voting rights.
The trust agreement may be amended from time to time by us and the
administrative trustees, without the consent of the holders of the trust
securities:
- to cure any ambiguity, correct or supplement any provisions in the trust
agreement that may be inconsistent with any other provision, or to make
any other provisions with respect to matters or questions arising under
the trust agreement, which shall not be inconsistent with the other
provisions of the trust agreement;
21
- to modify, eliminate or add to any provisions of the trust agreement to
such extent as shall be necessary to ensure that the trust will be
classified for United States federal income tax purposes as a grantor
trust at all times that any trust securities are outstanding or to ensure
that the trust will not be required to register as an "investment
company" under the Investment Company Act;
- to provide for a successor trustee; or
- to add to the covenants or obligations of us as sponsor;
provided, however, that in the case of the first two bullet points, the
interests of the holders of the trust securities shall not be adversely affected
in any material respect. Any amendments of the trust agreement pursuant to the
foregoing shall become effective once notice is given to the holders of the
trust securities.
We and the administrative trustees may otherwise amend the trust agreement
with the consent of holders representing a majority (based upon liquidation
amount) of the outstanding trust securities upon receipt by the trustees of an
opinion of counsel experienced in such matters to the effect that such amendment
or the exercise of any power granted to the trustees in accordance with such
amendment will not affect the trust's status as a grantor trust for United
States federal income tax purposes or the trust's exemption from status as an
investment company under the Investment Company Act; provided that, without the
consent of each holder of trust securities, the trust agreement may not be
amended to:
- change the amount or timing of any distribution on the trust securities
or otherwise adversely affect the amount of any distribution required to
be made in respect of the trust securities as of a specified date; or
- restrict the right of a holder of trust securities to institute suit for
the enforcement of any such payment on or after such date.
Subject to the requirements discussed below, holders of a majority in
liquidation amount of trust preferred securities may, and so long as any trust
debentures are held by the trust, the trustees will not, without obtaining the
prior approval of the holders of a majority in liquidation amount of all
outstanding trust preferred securities:
- direct the time, method and place of conducting any proceeding for any
remedy available to the debenture trustee, or executing any trust or
power conferred on the debenture trustee with respect to the trust
debentures;
- waive any past defaults under the indenture;
- exercise any right to rescind or annul a declaration of acceleration of
the maturity of the principal of the trust debentures; or
- consent to any amendment, modification or termination of the indenture or
the trust debentures, where such consent shall be required.
However, where a consent under the indenture would require the consent of
each holder of trust debentures affected thereby, no such consent shall be given
by the property trustee without the prior consent of each holder of the trust
preferred securities. The trustees will not revoke any action previously
authorized or approved by a vote of the holders of the trust preferred
securities except pursuant to a subsequent vote of such holders. The property
trustee shall notify each holder of trust preferred securities of any notice of
default that it receives with respect to the trust debentures. In addition to
obtaining the foregoing approvals of the holders of the trust preferred
securities, prior to taking any of the foregoing actions, the trustees shall
obtain an opinion of counsel experienced in such matters to the effect that the
trust will not fail to be classified as a grantor trust for United States
federal income tax purposes on account of such action.
Any required approval of holders of trust preferred securities may be given
at a meeting of such holders convened for such purpose or pursuant to written
consent (without prior notice). The property trustee will cause a notice of any
meeting at which holders of trust preferred securities are entitled to vote to
be given to each holder of record of trust preferred securities in the manner
set forth in the trust agreement.
22
No vote or consent of the holders of trust preferred securities will be
required for the trust to redeem and cancel the trust preferred securities in
accordance with the trust agreement.
Notwithstanding that holders of the trust preferred securities are entitled
to vote or consent under any of the circumstances described above, any of the
trust preferred securities that we own or any of our affiliates shall not be
entitled to vote or consent and shall, for purposes of such vote or consent, be
treated as if they were not outstanding.
PAYMENT AND PAYING AGENCY
Payments in respect of trust preferred securities held in global form will
be made to the depositary, which shall credit the relevant accounts at the
depositary on the applicable distribution dates, or in respect of trust
preferred securities that are not held by the depositary, such payments shall be
made by check mailed to the address of the holder entitled thereto as such
address shall appear on the register. The paying agent will initially be the
property trustee or an affiliate of the property trustee and any co-paying agent
chosen by the property trustee and acceptable to the administrative trustees and
us. The paying agent will be permitted to resign as paying agent upon 30 days'
written notice to the property trustee, the administrative trustees and us. If
the property trustee or an affiliate of the property trustee is no longer the
paying agent, the administrative trustees will appoint a successor (which will
be a bank or trust company acceptable to the administrative trustees and us) to
act as paying agent.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
Unless otherwise specified in the applicable prospectus supplement, the
trust preferred securities will be in registered, global form, and the global
trust preferred securities will be deposited upon issuance with DTC, in New
York, New York, and registered in the name of DTC or its nominee, in each case
for credit to an account of a direct or indirect participant in DTC as described
below.
A global preferred security may not be transferred as a whole except by DTC
to another nominee of DTC or to a successor of DTC or its nominee. Beneficial
interests in the global trust preferred securities shall be transferred and
exchanged through the facilities of DTC. Beneficial interests in the global
trust preferred securities may not be exchanged for trust preferred securities
in certificated form except in the limited circumstances described below. See
"-- Exchange of Book-Entry Trust Preferred Securities for Certificated Trust
Preferred Securities."
DEPOSITARY PROCEDURES
DTC has advised the trust and us that DTC is a limited-purpose trust
company organized under the New York banking law, a "banking organization"
within the meaning of the New York banking law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934. DTC holds securities
deposited with it by its participants and facilitates the settlement of
transactions among its participants in such securities through electronic
book-entry changes in accounts of the participants, thereby eliminating the need
for physical movement of security certificates. DTC's participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Indirect access to DTC's system is also
available to other entities such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a participant,
either directly or indirectly. Persons who are not participants may beneficially
own securities held by or on behalf of DTC only through the participants or the
indirect participants of DTC. The ownership interest and transfer of ownership
interest of each actual purchaser of each security held by or on behalf of DTC
are recorded on the records of the participants and indirect participants.
23
DTC has also advised the trust and us that it has established procedures to
provide that:
- upon deposit of the global trust preferred securities, DTC will credit
the accounts of participants designated by the exchange agent with
portions of the liquidation amount of the global trust preferred
securities; and
- ownership of such interests in the global trust preferred securities will
be shown on, and the transfer of that ownership will be effected only
through, records maintained by DTC (with respect to the participants) or
by the participants and indirect participants (with respect to other
owners of beneficial interests in the global trust preferred securities).
Investors in the global trust preferred securities may hold their interests
therein directly through DTC if they are participants in such system, or
indirectly through organizations that are participants in such system. All
interests in a global preferred security will be subject to the procedures and
requirements of DTC. The laws of some states require that certain persons take
physical delivery in certificated form of securities that they own.
Consequently, the ability to transfer beneficial interests in a global preferred
security to such persons will be limited to that extent. Because DTC can act
only on behalf of participants, which in turn act on behalf of indirect
participants and certain banks, the ability of a person having beneficial
interests in a global preferred security to pledge such interests to persons or
entities that do not participate in the DTC system, or otherwise take actions in
respect of such interests, may be affected by the lack of a physical certificate
evidencing such interests. For certain other restrictions on the transferability
of the trust preferred securities, see "-- Exchange of Book-Entry Trust
Preferred Securities for Certificated Trust Preferred Securities."
Except as described below, owners of interests in the global trust
preferred securities will not have trust preferred securities registered in
their name, will not receive physical delivery of trust preferred securities in
certificated form and will not be considered the registered owners or holders
thereof under the trust agreement for any purpose.
Payments in respect of each global preferred security registered in the
name of DTC or its nominee will be payable by the property trustee to DTC in its
capacity as the registered holder under the trust agreement. Under the terms of
the trust agreement, the property trustee will treat the persons in whose names
the trust preferred securities, including the global trust preferred securities,
are registered as the owners thereof for the purpose of receiving such payments
and for any and all other purposes whatsoever. Consequently, neither the
property trustee nor any agent thereof has or will have any responsibility or
liability for:
- any aspect of DTC's records or any participant's or indirect
participant's records relating to or payments made on account of
beneficial ownership interests in the global trust preferred securities,
or for maintaining, supervising or reviewing any of DTC's records or any
participant's or indirect participant's records relating to the
beneficial ownership interests in the global trust preferred securities;
or
- any other matter relating to the actions and practices of DTC or any of
its participants or indirect participants.
DTC has advised the trust and us that its current practice, upon receipt of
any payment in respect of securities such as the trust preferred securities, is
to credit the accounts of the relevant participants with the payment on the
payment date, in amounts proportionate to their respective holdings in
liquidation amount of beneficial interests in the relevant security as shown on
the records of DTC unless DTC has reason to believe it will not receive payment
on such payment date. Payments by the participants and the indirect participants
to the beneficial owners of trust preferred securities represented by global
trust preferred securities will be governed by standing instructions and
customary practices and will be the responsibility of the participants or the
indirect participants and will not be the responsibility of DTC, the property
trustee, the trust or us. None of us, the trust or the property trustee will be
liable for any delay by DTC or any of its participants in identifying the
beneficial owners of the trust preferred securities, and we, the trust and the
property trustee may conclusively rely on and will be protected in relying on
instructions from DTC or its nominee for all purposes.
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Interests in the global trust preferred securities will trade in DTC's
Same-Day Funds Settlement System and secondary market trading activity in such
interests will therefore settle in immediately available funds, subject in all
cases to the rules and procedures of DTC and its participants. Transfers between
participants in DTC will be effected in accordance with DTC's procedures, and
will be settled in same-day funds.
DTC has advised the trust and us that it will take any action permitted to
be taken by a holder of trust preferred securities only at the direction of one
or more participants to whose account with DTC interests in the global trust
preferred securities are credited and only in respect of such portion of the
liquidation amount of the trust preferred securities as to which such
participant or participants has or have given such direction. However, if there
is an event of default under the trust agreement, DTC reserves the right to
exchange the global trust preferred securities for trust preferred securities in
certificated form and to distribute such trust preferred securities to its
participants.
The information in this section concerning DTC and its book-entry system
has been obtained from sources that the trust and we believe to be reliable, but
neither the trust nor we take responsibility for the accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interest in the global trust preferred securities among participants in DTC,
DTC is under no obligation to perform or to continue to perform such procedures,
and such procedures may be discontinued at any time. None of us, the trust or
the property trustee will have any responsibility for the performance by DTC or
their respective participants or indirect participants of their respective
obligations under the rules and procedures governing their operations.
EXCHANGE OF BOOK-ENTRY TRUST PREFERRED SECURITIES FOR CERTIFICATED TRUST
PREFERRED SECURITIES
Unless otherwise specified in the applicable prospectus supplement, a
global preferred security is exchangeable for trust preferred securities in
certificated form if:
- DTC notifies the trust that it is unwilling or unable to continue as
depositary for the global preferred security or has ceased to be a
clearing agency registered under the Exchange Act, and the trust fails to
appoint a successor depositary within 90 days; or
- we, on behalf of the trust, in our sole discretion elect to cause the
issuance of the trust preferred securities in certificated form.
In all cases, certificated trust preferred securities delivered in exchange
for any global preferred security or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of the depositary (in accordance with its customary procedures).
REGISTRAR AND TRANSFER AGENT
The property trustee will act as registrar and transfer agent for the trust
preferred securities.
Registration of transfers of the trust preferred securities will be
effected without charge by or on behalf of the trust, but upon payment of any
tax or other governmental charges that may be imposed in connection with any
transfer or exchange. The trust will not be required to register or cause to be
registered the transfer of the trust preferred securities after they have been
called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee, other than during the occurrence and continuance of a
trust agreement event of default, will perform only such duties as are
specifically set forth in the trust agreement and, during the existence of a
trust agreement event of default, must exercise the same degree of care and
skill as a prudent person would exercise or use in the conduct of his or her own
affairs. The property trustee is under no obligation to exercise any of the
powers vested in it by the trust agreement at the request of any holder of trust
securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby. If no trust agreement event of
default has occurred and is continuing and the property trustee is required to
decide between alternative courses of action, construe ambiguous provisions in
the trust
25
agreement or is unsure of the application of any provision of the trust
agreement, and the matter is not one on which holders of the trust preferred
securities or the trust common securities are entitled under the trust agreement
to vote, then the property trustee shall take such action as is directed by us
and, if not so directed, shall take such action as it deems advisable and in the
best interests of the holders of the trust securities and will have no liability
except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the trust in such a way that the trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association taxable as a corporation
for United States federal income tax purposes and so that the trust debentures
will be treated as our indebtedness for United States federal income tax
purposes. In this connection, we and the administrative trustees are authorized
to take any action, not inconsistent with applicable law, the certificate of
trust of the trust or the trust agreement, that we and the administrative
trustees determine in our discretion is necessary or desirable for such
purposes.
The trust agreement and the trust preferred securities will be governed by
and construed in accordance with the internal laws of the State of Delaware.
DESCRIPTION OF TRUST DEBENTURES
The trust will purchase trust debentures issued by us with the proceeds
from the sale of the trust securities under an indenture, which we refer to as
the "junior subordinated indenture," between us and Bank One Trust Company,
N.A., as trustee. Selected provisions of the junior subordinated indenture are
summarized below. This summary is not complete and contains only a general
description of the trust debentures and the junior subordinated indenture. Any
of the following terms may be changed, as set forth in a prospectus supplement.
A form of the junior subordinated indenture has been filed with the SEC, and you
should read the junior subordinated indenture for provisions that may be
important to you. A definitive form of the junior subordinated indenture will be
filed with the SEC when we issue trust debentures. The junior subordinated
indenture will be qualified as an indenture under the Trust Indenture Act. You
should also refer to the Trust Indenture Act for provisions that apply to the
trust debentures. Wherever particular defined terms of the junior subordinated
indenture are referred to, such defined terms are incorporated herein by
reference.
GENERAL
The trust will invest the proceeds obtained from any issuance of trust
preferred securities, together with the consideration paid by us for the trust
common securities, in trust debentures issued by us. The trust debentures will
bear interest at the same rate as the distribution rate of the trust preferred
securities specified in the applicable prospectus supplement, and interest on
the trust debentures and in the trust preferred securities accrue from the same
date. It is anticipated that, until the liquidation, if any, of the trust, each
trust debenture will be held in the name of the property trustee in trust for
the benefit of the holders of the trust securities.
Except as otherwise stated in the applicable prospectus supplement, the
trust debentures will be issued in denominations of $1,000 and integral
multiples thereof. The trust debentures will mature on the date specified in the
applicable prospectus supplement.
The trust debentures issued by us will be unsecured, subordinate and junior
in right of payment to all Senior Indebtedness (as defined below) to the extent
and in the manner set forth in the junior subordinated indenture. See
"-- Subordination."
SUBORDINATION
The junior subordinated indenture provides that any trust debentures issued
under the junior subordinated indenture will be subordinate and junior in right
of payment to all Senior Indebtedness. Upon any payment or distribution of
assets to creditors upon any liquidation, dissolution, winding up,
reorganization, or
26
in connection with any insolvency, receivership or bankruptcy proceeding with
respect to our company, all Senior Indebtedness must be paid in full before the
holders of trust debentures will be entitled to receive or retain any payment in
respect thereof.
In the event of the acceleration of the maturity of trust debentures, the
holders of all Senior Indebtedness outstanding at the time of such acceleration
will first be entitled to receive payment in full of such Senior Indebtedness
before the holders of trust debentures will be entitled to receive or retain any
payment in respect of the trust debentures.
No payments on account of principal, or premium, or interest, if any, in
respect of the trust debentures may be made if a default in any payment with
respect to Senior Indebtedness has occurred and is continuing, or an event of
default has occurred with respect to any Senior Indebtedness resulting in the
acceleration of the maturity thereof, or if any judicial proceeding shall be
pending with respect to any such default.
"Indebtedness" means:
- all of our obligations for money borrowed;
- all of our obligations evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with
the acquisition of property, assets or businesses;
- all of our reimbursement obligations with respect to letters of credit,
banker's acceptances or similar facilities issued for our account;
- all of our obligations issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business);
- all of our capital lease obligations;
- all our indebtedness whether incurred on or prior to the date of the
junior subordinated indenture or thereafter incurred, for claims in
respect of derivative products, including interest rate, foreign exchange
rate and commodity forward contracts, options and swaps and similar
arrangements; and
- every obligation of the type referred to in the preceding bullet points
of another person and all dividends of another person the payment of
which, in either case, we have guaranteed or are responsible or liable,
directly or indirectly, as obligor or otherwise.
"Indebtedness Ranking on a Parity with the Trust Debentures" means:
- Indebtedness, whether outstanding on the date of execution of the junior
subordinated indenture or thereafter created, assumed or incurred, to the
extent such Indebtedness specifically by its terms ranks equally with and
not prior to the trust debentures in right of payment upon the happening
of the dissolution or winding-up or liquidation or reorganization of us;
and
- all other debt securities, and guarantees in respect of those debt
securities (including other debentures and other guarantees), issued to
any other trust, or a trustee of such trust, partnership or other entity
affiliated with us that is our financing vehicle in connection with the
issuance by such financing vehicle of equity securities that are similar
to the trust preferred securities or other securities guaranteed by us.
The securing of any Indebtedness otherwise constituting Indebtedness
Ranking on a Parity with the Trust Debentures will not be deemed to prevent such
Indebtedness from constituting Indebtedness Ranking on a Parity with the Trust
Debentures.
"Indebtedness Ranking Junior to the Trust Debentures" means any
Indebtedness, whether outstanding on the date of execution of the junior
subordinated indenture or thereafter created, assumed or incurred, to the extent
such Indebtedness specifically by its terms ranks junior to and not equally with
or prior to the trust debentures (and any other Indebtedness Ranking on a Parity
with the Trust Debentures) in right of payment upon the happening of the
dissolution or winding-up or liquidation or reorganization of us. The securing
of any Indebtedness otherwise constituting Indebtedness Ranking Junior to the
Trust Debentures will not be deemed to prevent such Indebtedness from
constituting Indebtedness Ranking Junior to the Trust Debentures.
27
"Senior Indebtedness" means all Indebtedness, whether outstanding on the
date of execution of the junior subordinated indenture or thereafter created,
assumed or incurred, except Indebtedness Ranking on a Parity with the Trust
Debentures or Indebtedness Ranking Junior to the Trust Debentures, and any
deferrals, renewals or extensions of such Senior Indebtedness.
Holders of trust debentures should look only to us for payments on the
trust debentures.
OPTION TO EXTEND INTEREST PAYMENT DATE
Except as otherwise described in an applicable prospectus supplement, so
long as no debenture event of default has occurred and is continuing, we will
have the right under the junior subordinated indenture at any time and from time
to time during the term of the trust debentures to defer the payment of interest
for a period not exceeding 10 consecutive semi-annual periods (or the equivalent
thereof). However, no deferral period shall extend beyond the stated maturity
date. At the end of such deferral period, we must pay all interest then accrued
and unpaid. During the deferral period we will be restricted from making certain
payments described below under "-- Restrictions on Certain Payments."
Prior to the termination of any deferral period, we may further extend such
deferral period, so long as such extension does not cause such deferral period
to exceed 10 consecutive semi-annual periods or extend beyond the stated
maturity date. Upon the termination of any deferral period and the payment of
all amounts then due on any interest payment date, we may elect to begin a new
deferral period, subject to the above requirements. No interest shall be due and
payable during a deferral period, except at the end thereof. We must give the
property trustee, the administrative trustees and the debenture trustee notice
of our election to defer payment of interest on the trust debentures at least
one business day prior to the earlier of:
- the date the distributions on the trust securities would have been
payable except for the election to begin or extend such deferral period;
or
- the date the administrative trustees are required to give notice to any
securities exchange or to holders of capital securities of the record
date or the date such distributions are payable, but in any event not
less than one business day prior to such record date.
The property trustee shall give notice of our election to begin or extend a
new deferral period to the holders of the trust preferred securities. There is
no limitation on the number of times that we may elect to begin a deferral
period. Accordingly, there could be multiple deferral periods of varying lengths
throughout the term of the trust debentures.
CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable prospectus supplement, the
trust debentures may be convertible or exchangeable into other debt or equity
securities or property. The specific terms on which trust debentures may be so
converted or exchanged will be set forth in the applicable prospectus
supplement. Such terms may include provisions for conversion or exchange, either
mandatory, at the option of the holder, or at our option, in which case the
number or amount of securities or other property to be received by the holders
of the trust debentures would be calculated as of a time and in the manner
stated in the applicable prospectus supplement.
RESTRICTIONS ON CERTAIN PAYMENTS
Except as otherwise specified in the applicable prospectus supplement, if
(1) any event has occurred, of which we have actual knowledge, that with the
giving of notice or the lapse of time, or both, would be a debenture event of
default and in respect of which we have not taken reasonable steps to cure, (2)
a debenture event of default has occurred and is continuing, (3) if the trust
debentures are held by the property trustee, we are in default with respect to
our payment of any obligations under the guarantee or (4) we have given notice
28
of our election of a deferral period as provided in the junior subordinated
indenture, or such deferral period, or any extension thereof, has commenced and
is continuing, then we will not do any of the following:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of our
capital stock other than the following:
- dividends or distributions in shares of, or options, warrants or rights
to subscribe for or purchase shares of, common stock;
- any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan
in the future, or the redemption or repurchase of any such rights
pursuant thereto;
- as a result of a reclassification of our capital stock or the exchange
or conversion of one class or series of our capital stock for another
class or series of our capital stock;
- the purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged; and
- purchases of common stock related to the issuance of common stock or
rights under any of our benefit plans for our directors, officers or
employees or any of our dividend reinvestment plans;
- make any payment of principal, interest or premium, if any, on or repay
or repurchase or redeem any of our debt securities (including other
debentures) that rank equal to or junior in right of payment to the trust
debentures; or
- make any guarantee payments (other than payments under the guarantee of
the trust securities) with respect to any guarantee by us of the debt
securities of any of our subsidiaries, if such guarantee ranks pari passu
or junior in right of payment to the trust debentures.
REDEMPTION
To the extent set forth in an applicable prospectus supplement, we may, or
may be required to, redeem the trust debentures at the prices and on the terms
set forth in such prospectus supplement. If the trust debentures are so
redeemable only on or after a specified date or event or upon the satisfaction
of additional conditions, the applicable prospectus supplement will specify such
date or event or describe such conditions.
If set forth in the applicable prospectus supplement, a series of trust
debentures may be redeemable in the event of certain changes in tax law
affecting our ability to deduct, for federal income tax purposes, the interest
payable on the trust debentures. The applicable prospectus supplement will
describe the terms of any such right and the status of any then pending changes
in tax law relevant to such right.
For so long as the trust is the holder of the trust debentures, the
proceeds of any redemption of such debentures will be used by the trust to
redeem the related trust securities in accordance with their terms.
Except as set forth in the applicable prospectus supplement, notice of any
redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each holder of the trust debentures to be redeemed at its
registered address. Unless we default in payment of the redemption price, on and
after the redemption date interest will cease to accrue on the trust debentures
or portions thereof called for redemption.
CERTAIN COVENANTS
Except as otherwise specified in the applicable prospectus supplement, if
and so long as the trust is the holder of all trust debentures, we, as borrower,
will pay to the trust all fees and expenses related to the trust and the
offering of the trust securities and will pay, directly or indirectly, all
ongoing costs, expenses and liabilities of the trust (including any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States or any domestic taxing authority
upon the trust but excluding obligations under the trust securities).
29
Except as otherwise specified in an applicable prospectus supplement, so
long as the trust securities remain outstanding, we also covenant:
- to maintain 100% direct or indirect ownership of the trust common
securities; provided, however, that any successor of our company
permitted under the indenture may succeed to our ownership of such trust
common securities; and
- to use reasonable efforts to cause the trust:
- to remain a business trust, except in connection with the distribution
of trust debentures to the holders of trust securities in liquidation of
the trust, the redemption of all of the trust securities, or certain
mergers, consolidations or amalgamations, each as permitted by the trust
agreement; and
- to otherwise continue to be treated as a grantor trust for United States
federal income tax purposes; and
- to use our reasonable efforts to cause each holder of trust securities to
be treated as owning an undivided beneficial interest in the trust
debentures.
ADDITIONAL SUMS
Except as set forth in the applicable prospectus supplement, we will be
obligated to pay as additional amounts on the trust debentures such additional
amounts as may be necessary in order that the amount of distributions then due
and payable by the trust on the outstanding trust securities shall not be
reduced as a result of any such additional taxes, duties and other governmental
charges.
MODIFICATION OF INDENTURE
From time to time and without the consent of the holders of trust
debentures, we and the debenture trustee may amend the junior subordinated
indenture for specified purposes, including, among other things, to cure any
ambiguity or to correct or supplement any provision contained in the junior
subordinated indenture or any supplemental indenture which is defective or
inconsistent with any other provision contained therein (provided that any such
action does not materially adversely affect the interests of the holders of
trust debentures) and qualifying, or maintaining the qualification of, the
junior subordinated indenture under the Trust Indenture Act.
The junior subordinated indenture contains provisions permitting us and the
debenture trustee, with the consent of the holders of a majority in aggregate
principal amount of trust debentures, to amend the junior subordinated indenture
in a manner affecting the rights of the holders of trust debentures. However,
except as set forth in the applicable prospectus supplement, no such
modification may, without the consent of the holders of each outstanding trust
debenture so affected:
- change the stated maturity, or reduce the rate of interest or extend the
time of payment of interest thereon except pursuant to our right under
the junior subordinated indenture to defer the payment of interest as
provided therein (see "-- Option to Extend Interest Payment Date") or
reduce the amount of any premium payable on the trust debentures or
reduce the amount payable on redemption thereof or make the principal of,
or interest or premium on, the trust debentures payable in any coin or
currency other than that provided in the trust debentures, or impair or
affect the right of any holder of trust debentures to institute suit for
the payment thereof or, if applicable, to convert or exchange such
holder's trust debenture as set forth in the junior subordinated
indenture;
- modify the provisions of the junior subordinated indenture with respect
to the subordination of the trust debentures in a manner adverse to the
holders;
30
- reduce the percentage of principal amount of trust debentures, the
holders of which are required to consent to any such modification of the
junior subordinated indenture, or are required to consent to any waiver
provided for in the junior subordinated indenture; or
- modify certain other provisions of the junior subordinated indenture
relating to amendments and waivers of holders.
Notwithstanding the foregoing, if the trust holds the trust debentures, an
amendment requiring consent of holders of a majority in principal amount of the
trust debentures will not be effective until the holders of a majority in
liquidation amount of the trust securities have consented to the amendment.
Further, if the consent of the holders of each trust debenture is required, an
amendment will not be effective until each holder of the trust securities has
consented to such amendment.
DEBENTURE EVENTS OF DEFAULT
Except as set forth in the applicable prospectus supplement, the junior
subordinated indenture provides that any one or more of the following described
events with respect to the trust debentures constitute a debenture event of
default:
- failure to pay any interest on the trust debentures when due for 30 days
(subject to the deferral of any due date in the case of an Extension
Period); or
- failure to pay any principal or premium, if any, on the trust debentures
when due whether at maturity, upon redemption, by declaration of
acceleration of maturity or otherwise; or
- failure to perform, or breach of, any other covenant or warranty of our
company contained in the junior subordinated indenture for 90 days after
written notice to our company from the debenture trustee or the holders
of at least 25% in aggregate outstanding principal amount of trust
debentures; or
- certain events of bankruptcy, insolvency or reorganization of our
company.
Within five business days after the occurrence of a debenture event of
default actually known to the indenture trustee, the indenture trustee must
transmit notice of such debenture event of default to the debenture holders,
unless such debenture event of default has been cured or waived. The junior
subordinated indenture requires that we file annually with the debenture trustee
of a certificate as to the absence of certain defaults under the indenture.
The holders of a majority in aggregate outstanding principal amount of the
trust debentures generally have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the debenture trustee
or to exercise any trust or power conferred upon the debenture trustee under the
junior subordinated indenture, with certain exceptions set forth in the junior
subordinated indenture. If a debenture event of default has occurred and is
continuing, the debenture trustee or the holders of not less than 25% in
aggregate outstanding principal amount of the trust debentures may declare the
principal amount on all trust debentures due and payable immediately upon such
debenture event of default. The holders of a majority in aggregate outstanding
principal amount of the trust debentures may annul such declaration and waive
the default if the default (other than the non-payment of the principal of the
trust debentures which has become due solely by such acceleration) has been
cured and a sum sufficient to pay all matured installments of interest and
principal of, and premium, if any, due otherwise than by acceleration (with any
compounded interest due thereon) has been deposited with the debenture trustee.
Prior to the declaration accelerating the maturity of the trust debentures,
the holders of a majority in aggregate outstanding principal amount of the trust
debentures may, on behalf of the holders of all the trust debentures, waive any
past default or debenture event of default and its consequences, except a
continuing default in the payment of principal (or premium, if any) or interest
or a default in respect of a covenant or provision which under the junior
subordinated indenture cannot be modified or amended without the consent of the
holder of each outstanding trust debenture affected.
31
In case a payment related debenture event of default shall occur and be
continuing, the property trustee will have the right to declare the principal of
and the interest on such trust debentures and any other amounts payable under
the junior subordinated indenture, to be forthwith due and payable and to
enforce its other rights as a creditor with respect to such trust debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
If a debenture event of default has occurred and is continuing and is
attributable to our failure to pay the principal of (or premium, if any), or
interest on the trust debentures on the date such payment is otherwise required,
a holder of trust preferred securities may institute a direct action against us
for such failure to pay. We may not amend the junior subordinated indenture to
remove the foregoing right to bring a direct action without the prior written
consent of the holders of all of the trust preferred securities. Notwithstanding
any payments made to a holder of trust preferred securities by us in connection
with a direct action, we will be subrogated to the rights of the holder of such
trust preferred securities with respect to payments on the trust preferred
securities to the extent of any payments made by us to such holder in any direct
action.
The holders of the trust preferred securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the trust debentures unless there shall have been an
event of default under the trust agreement. See "Description of Trust
Securities -- Events of Default; Notice."
SATISFACTION AND DISCHARGE
The junior subordinated indenture provides that when, among other things,
all trust debentures not previously cancelled or delivered to the debenture
trustee for cancellation (i) have become due and payable or (ii) will become due
and payable at maturity or called for redemption within one year, and we deposit
or cause to be deposited with the debenture trustee funds, in trust, for the
purpose and in an amount sufficient to pay on the stated maturity date or upon
redemption of all the trust debentures not previously delivered to the debenture
trustee for cancellation, the principal (and premium, if any) and interest due
or to become due on the stated maturity date, or the redemption date, as the
case may be, then the junior subordinated indenture will cease to be of further
effect (with limited exceptions), and we will be deemed to have satisfied and
discharged the junior subordinated indenture.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The junior subordinated indenture does not prevent us from consolidating
with or merging into any other person or conveying, transferring or leasing our
properties as an entirety or substantially as an entirety to any person, as long
as:
- either we are the surviving person or the successor person is organized
and existing under the laws of the United States or any state or the
District of Columbia, and such successor person expressly assumes our
obligations on the trust debentures and the junior subordinated
indenture, including with respect to conversion matters, if applicable;
- immediately after giving effect thereto, no debenture event of default,
and no event which, after notice or lapse of time or both, would become a
debenture event of default, has occurred and is continuing; and
- certain other procedural conditions prescribed in the junior subordinated
indenture are met.
FORM, REGISTRATION AND TRANSFER
If the trust debentures are distributed to the holders of the trust
securities, the trust debentures may be represented by one or more global
certificates registered in the name of the DTC or its nominee. Under such
circumstances, the depositary arrangements for the trust debentures would be
expected to be substantially similar to those in effect for the preferred
securities. For a description of DTC and the terms of the depositary
arrangements relating to payments, transfers, voting rights, redemptions and
other notices and other matters,
32
see "Description of Preferred Securities -- Form, Denomination, Book-Entry
Procedures and Transfer" and "-- Depositary Procedures."
PAYMENT AND PAYING AGENTS
Payment of principal of (and premium, if any) and interest on trust
debentures will be made at the office of the debenture trustee or at the office
of such paying agent or paying agents as we may designate from time to time,
except that at our option payment of any interest may be made, except in the
case of trust debentures in global form, (i) by check mailed to the address of
the holder thereof as such address shall appear in the register for trust
debentures or (ii) by transfer to an account maintained by the holder thereof,
provided that proper transfer instructions have been received by the relevant
record date. Payment of any interest on any trust debenture will be made to the
person in whose name such trust debenture is registered at the close of business
on the record date for such interest. We may at any time designate additional
paying agents or rescind the designation of any paying agent; however we will at
all times be required to maintain a paying agent in each place of payment for
the trust debentures.
GOVERNING LAW
The junior subordinated indenture and the trust debentures will be governed
by and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The debenture trustee will be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act of 1939. Subject to such provisions, the debenture trustee is
under no obligation to exercise any of the powers vested in it by the indenture
at the request of any holder of trust debentures, unless offered reasonable
indemnity by such holder against the costs, expenses and liabilities which might
be incurred thereby. The debenture trustee is not required to expend or risk its
own funds or otherwise incur personal financial liability in the performance of
its duties if the debenture trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it. Bank One Trust Company, N.A.
is the trustee under the junior subordinated indenture. Bank One, N.A. is the
trustee under our senior debt indenture, which is described under the section
entitled "Description of Debt Securities."
DESCRIPTION OF GUARANTEE
Set forth below is a summary of information concerning the guarantee, which
will be executed and delivered by us for the benefit of the holders from time to
time of trust preferred securities. The guarantee will be qualified under the
Trust Indenture Act of 1939. The guarantee trustee, Bank One Trust Company,
N.A., will hold the guarantee for the benefit of the holders of the trust
preferred securities. The following summary is not necessarily complete, and
reference is hereby made to the copy of the form of the guarantee (including the
definitions therein of certain terms), which is filed as an exhibit to the
registration statement of which this prospectus forms a part, and to the Trust
Indenture Act of 1939. We will describe the particular terms of the guarantee,
and any provisions that vary from those described below, in one or more
prospectus supplements. We will also file the definitive guarantee with the SEC
when we issue trust preferred securities.
GENERAL
We will irrevocably and unconditionally agree to pay in full on a
subordinated basis the payments described below to the holders of the trust
preferred securities, as and when due, regardless of any defense, right of
setoff or counterclaim that the trust may have or assert other than the defense
of payment. The following payments with respect to the trust preferred
securities, to the extent not paid by or on behalf of the trust, will be subject
to the guarantee:
- any accumulated and unpaid distributions required to be paid on the trust
preferred securities, to the extent that the trust has funds on hand
legally available therefor at such time;
33
- the applicable redemption price with respect to the trust preferred
securities called for redemption, to the extent that the trust has funds
on hand legally available therefor at such time; and
- upon a voluntary or involuntary dissolution, winding-up or liquidation of
the trust (other than in connection with the distribution of the trust
debentures to holders of the trust preferred securities), the lesser of:
- the liquidation distribution, to the extent the trust has funds legally
available therefor at the time; or
- the amount of assets of the trust remaining available for distribution
to holders of trust preferred securities after satisfaction of
liabilities to creditors of the trust as required by applicable law.
Our obligation to make a guarantee payment may be satisfied by direct
payment of the required amounts by us to the holders of the trust preferred
securities or by causing the trust to pay such amounts to such holders.
The guarantee will be a guarantee of the guarantee payments with respect to
the trust preferred securities from the time of issuance of the trust preferred
securities, but will not apply to distributions and other payments on the trust
preferred securities when the trust does not have sufficient funds legally and
immediately available to make such distributions or other payments. Therefore,
if we do not make interest payments on the trust debentures held by the property
trustee, the trust will not make distributions on the trust preferred securities
and we will not make payments under the guarantee.
Through the guarantee, the trust agreement, the trust debentures and the
junior subordinated indenture, taken together, we will fully, irrevocably and
unconditionally guarantee all of the trust's obligations under the trust
preferred securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
trust's obligations under the trust preferred securities. See "Relationship
Among the Preferred Securities, the Trust Debentures and the Guarantee."
STATUS OF THE GUARANTEE
The guarantee will constitute our unsecured obligation and will rank
subordinate and junior in right of payment to all Senior Indebtedness in the
same manner as the trust debentures. See "Description of Trust
Debentures -- Subordination."
The guarantee will rank equally with our guarantee of the 6% Convertible
Preferred Securities, Term Income Deferrable Equity Securities (TIDES) of
Continental Airlines Finance Trust II and all other guarantees issued by us
after the issue date with respect to trust preferred securities, if any, issued
by other trusts. The guarantee will constitute a guarantee of payment and not of
collection. The guarantee will be held by the guarantee trustee for the benefit
of the holders of the trust preferred securities. The guarantee will not be
discharged except by payment of the guarantee payments in full to the extent not
paid by the trust or upon distribution to the holders of the trust preferred
securities of the trust debentures.
The guarantee does not limit the incurrence or issuance of other secured or
unsecured debt by us or any of our subsidiaries, including Senior Indebtedness,
whether under the junior subordinated indenture, any other indenture that we may
enter into in the future or otherwise.
EVENTS OF DEFAULT
An event of default under the guarantee will occur upon our failure to
perform any of our payment or other obligations thereunder; provided, however,
that with respect to a default other than a default in payment of any guarantee
payment, we have received notice of such default and shall not have cured such
default within 60 days after receipt of such notice. The holders of not less
than a majority in liquidation amount of the trust preferred securities will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the guarantee trustee in respect of the guarantee or
to direct the exercise of any trust or power conferred upon the guarantee
trustee under the guarantee.
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Any holder of the trust preferred securities may institute a legal
proceeding directly against us to enforce its rights under the guarantee without
first instituting a legal proceeding against the trust, the guarantee trustee or
any other person or entity.
As guarantor, we will be required to file annually with the guarantee
trustee a certificate as to whether or not we are in compliance with all the
conditions and covenants applicable to us under the guarantee.
Upon the occurrence of a default under the guarantee, we will not be
allowed to make certain payments as described under "Description of Trust
Debentures -- Restrictions on Certain Payments."
AMENDMENTS AND ASSIGNMENTS
Except with respect to any changes that do not materially adversely affect
the rights of holders of the trust preferred securities (in which case no vote
will be required), the guarantee may be amended only with the prior approval of
the holders of a majority of the liquidation amount of such outstanding trust
preferred securities. The manner of obtaining any such approval will be as set
forth under "Description of Trust Securities -- Voting Rights; Amendment of the
Trust Agreement." All guarantees and agreements contained in the guarantee shall
bind our successors, assigns, receivers, trustees and representatives and shall
inure to the benefit of the holders of the trust preferred securities then
outstanding.
TERMINATION OF THE GUARANTEE
The guarantee will terminate and be of no further force and effect upon:
- full payment of the applicable redemption price of the trust preferred
securities; or
- upon liquidation of the trust, the full payment of the liquidation
distribution or the distribution of the trust debentures to the holders
of the trust preferred securities or, if applicable, the conversion or
exchange of all trust preferred securities in accordance with their
terms.
The guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the trust preferred securities must
restore payment of any sums paid under the trust preferred securities or the
guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
Other than during the occurrence and continuance of a default by us in
performance of the guarantee, the guarantee trustee will undertake to perform
only such duties as are specifically set forth in the guarantee and, in case a
default with respect to the guarantee has occurred, must exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the guarantee
trustee will be under no obligation to exercise any of the powers vested in it
by the guarantee at the request of any holder of the trust preferred securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred thereby.
GOVERNING LAW
The guarantee will be governed by and construed in accordance with the laws
of the State of New York.
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RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE TRUST DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of distributions and other amounts due on the trust preferred
securities, to the extent the trust has funds on hand legally available for the
payment of such distributions, are irrevocably guaranteed by us as and to the
extent set forth under "Description of Guarantee." Taken together, our
obligations under the trust debentures, the junior subordinated indenture, the
trust agreement and the guarantee provide, in the aggregate, a full, irrevocable
and unconditional guarantee of payments of distributions and other amounts due
on the trust preferred securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
such guarantee. It is only the combined operation of these documents that has
the effect of providing a full, irrevocable and unconditional guarantee of the
trust's obligations under the trust preferred securities. If and to the extent
that we do not make the required payments on the trust debentures, the trust
will not have sufficient funds to make the related payments, including
distributions, on the trust preferred securities. The guarantee will not cover
any such payment when the trust does not have sufficient funds on hand legally
available therefor. In such event, the remedy of a holder of trust preferred
securities is to institute a direct action against us to enforce such holders'
rights under the trust debentures. Our obligations under the guarantee are
subordinate and junior in right of payment to all Senior Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
trust debentures, such payments will be sufficient to cover distributions and
other payments due on the trust securities, primarily because:
- the aggregate principal amount or prepayment price of the trust
debentures will be equal to the sum of the liquidation amount or
redemption price, as applicable, of the trust securities;
- the interest rate and interest and other payment dates on the trust
debentures will match the distribution rate and distribution and other
payment dates for the trust securities;
- we will pay for all and any costs, expenses and liabilities of the trust
except the trust's obligations to holders of trust securities under such
trust securities; and
- the trust agreement will provide that the trust is not authorized to
engage in any activity that is not consistent with the limited purposes
thereof.
Notwithstanding anything to the contrary in the junior subordinated
indenture, we have the right to set-off any payment we are otherwise required to
make with and to the extent we have theretofore made, or are concurrently on the
date of such payment making, a payment under the guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF TRUST PREFERRED SECURITIES
A holder of any preferred trust security may institute a legal proceeding
directly against us to enforce its rights under the guarantee without first
instituting a legal proceeding against the guarantee trustee, the trust or any
other person or entity. A holder of trust preferred securities will also have a
direct right to proceed against us to enforce such holder's rights under the
trust debentures in the event of a payment default on the trust debentures.
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LIMITED PURPOSE OF THE TRUST
The trust preferred securities represent preferred undivided beneficial
interests in the assets of the trust, and the trust exists for the sole purpose
of:
- issuing and selling the trust securities;
- using the proceeds from the sale of the trust securities to acquire the
trust debentures; and
- engaging in only those other activities necessary, advisable or
incidental thereto.
A principal difference between the rights of a holder of a preferred
security and a holder of a trust debenture is that a holder of a trust debenture
will be entitled to receive from us the principal amount of, and premium, if
any, and interest on trust debentures held, while a holder of trust preferred
securities is entitled to receive distributions from the trust (or, in certain
circumstances, from us under the guarantee) if and to the extent the trust has
funds on hand legally available for the payment of such distributions.
RIGHTS UPON DISSOLUTION
Unless the trust debentures are distributed to holders of the trust
securities, upon any voluntary or involuntary dissolution and liquidation of the
trust, after satisfaction of liabilities to creditors of the trust as required
by applicable law, the holders of the trust securities will be entitled to
receive, out of assets held by the trust, the liquidation distribution in cash.
See "Description of Trust Securities -- Liquidation of the Trust and
Distribution of Trust Debentures." Upon any voluntary or involuntary liquidation
or bankruptcy of our company, the property trustee, as holder of the trust
debentures, would be a subordinated creditor of our company, subordinated in
right of payment to all Senior Indebtedness as set forth in the junior
subordinated indenture, but entitled to receive payment in full of principal,
and premium, if any, and interest, before any of our stockholders receive
payments or distributions. Since we will be the guarantor under the guarantee
and will agree to pay for all costs, expenses and liabilities of the trust
(other than the trust's obligations to the holders of its trust securities), the
positions of a holder of trust preferred securities and a holder of trust
debentures relative to other creditors and to our stockholders in the event of
our liquidation or bankruptcy are expected to be substantially the same.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
Our authorized capital stock currently consists of 200 million shares of
Class B common stock, which we refer to as the common stock, and 10 million
shares of preferred stock. As of October 5, 2001, we had outstanding 55,420,915
shares of Class B common stock and one share of Series B preferred stock.
This section contains a description of our common stock and preferred stock
that we may offer by this prospectus as well as the terms of our Series B
preferred stock which may affect our common stock and preferred stock that we
may offer by this prospectus. The following discussion is not meant to be
complete and is qualified by reference to our certificate of incorporation,
bylaws and the rights agreement that we describe in this section. For more
information, you should read "Where You Can Find More Information."
DESCRIPTION OF COMMON STOCK
Rights to Dividends and on Liquidation, Dissolution or Winding Up. Common
stockholders participate ratably in any dividends or distributions on the common
stock. In the event of any liquidation, dissolution or winding up of our
company, common stockholders are entitled to share ratably in our assets
available for distribution to the stockholders, subject to the prior rights of
holders of any outstanding preferred stock.
Preemptive and Other Subscription Rights. Common stockholders do not have
preemptive, subscription, conversion or redemption rights (other than the
anti-dilution rights described under "-- Corporate Governance and Control"), and
are not subject to further capital calls or assessments.
No Cumulative Voting Rights. Common stockholders do not have the right to
cumulate their votes in the election of directors.
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Voting. Holders of common stock are entitled to one vote per share on all
matters submitted to a vote of stockholders, except that voting rights of
non-U.S. citizens are limited as described under "-- Limitation on Voting by
Foreign Owners."
DESCRIPTION OF PREFERRED STOCK
The following summary describes certain general terms of our authorized
preferred stock.
We may issue preferred stock from time to time in one or more series.
Subject to the provisions of our certificate of incorporation and limitations
prescribed by law, our board of directors may adopt resolutions to issue the
shares of preferred stock in one or more series, to fix the number of shares of
the series and to establish the designations, powers, preferences and relative,
participating, optional or other special rights of the preferred stock. Our
board of directors may also fix the qualifications, limitations or restrictions,
if any, of the preferred stock, including dividend rights (including whether
dividends are cumulative), dividend rates, terms of redemption (including
sinking fund provisions), redemption rights and prices, conversion or exchange
rights and liquidation preferences of the shares of the series, in each case
without any further action or vote by our stockholders.
If we offer preferred stock, a description will be filed with the SEC and
the specific terms of the preferred stock will be described in the prospectus
supplement, including the following terms:
- the series, the number of shares offered and the liquidation value of the
preferred stock;
- the price at which the preferred stock will be issued;
- the dividend rate, the dates on which the dividends will be payable and
other terms relating to the payment of dividends on the preferred stock;
- the voting rights of the preferred stock;
- the liquidation preference of the preferred stock;
- whether the preferred stock is redeemable or subject to a sinking fund,
and the terms of any such redemption or sinking fund;
- whether the preferred stock is convertible into or exchangeable for any
other securities, and the terms of any such conversion or exchange; and
- any additional rights, preferences, qualifications and limitations of the
preferred stock.
LIMITATION ON VOTING BY FOREIGN OWNERS
Our certificate of incorporation provides that shares of capital stock may
not be voted by or at the direction of persons who are not citizens of the
United States unless the shares are registered on a separate stock record.
Applicable restrictions currently require that no more than 25% of our voting
stock be owned or controlled, directly or indirectly, by persons who are not
U.S. citizens, and that our president and at least two-thirds of our directors
or other managing officers be U.S. citizens. For purposes of the certificate of
incorporation, "U.S. citizen" means:
- an individual who is a citizen of the United States; or
- a partnership each of whose partners is an individual who is a citizen of
the United States, or a corporation or association organized under the
laws of the United States or a state, the District of Columbia, or a
territory or possession of the United States, of which the president and
at least two-thirds of the board of directors and other managing officers
are citizens of the United States, and in which at least 75% of the
voting interest is owned or controlled by persons that are citizens of
the United States.
Our bylaws provide that no shares will be registered on the foreign stock
record if the amount so registered would exceed the restrictions described above
or adversely affect our operating certificates or
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authorities. Registration on the foreign stock record is made in chronological
order based on the date we receive a written request for registration.
An affiliate of AXA Financial, Inc. has requested that all shares
beneficially owned by AXA Financial, Inc. and its affiliates be included on our
foreign stock record. Although we have not to date limited the registration of
any shares on this record, subject to certain factors, the registration of the
shares beneficially owned by AXA Financial, Inc. will preclude the registration,
and thus the voting of, any shares owned by any other stockholders that are not
U.S. citizens.
PREFERRED STOCK PURCHASE RIGHTS
General. One preferred stock purchase right is currently associated with
each outstanding share of our common stock. Each of these preferred stock
purchase rights entitles the registered holder to purchase from us one
one-thousandth of a share of our Series A junior participating preferred stock
at a purchase price of $200 per one one-thousandth of a share, subject to
adjustment.
The preferred stock purchase rights will have anti-takeover effects. The
preferred stock purchase rights could cause substantial dilution to a person or
group that attempts to acquire us and effect a change in the composition of our
board of directors on terms not approved by our board of directors, including by
means of a tender offer at a premium to the market price. Subject to
restrictions and limitations contained in our charter, the preferred stock
purchase rights should not interfere with any merger or business combination
approved by our board of directors, because we may redeem the preferred stock
purchase rights at the redemption price prior to the time that a person has
become an acquiring person or amend the preferred stock purchase rights to make
them inapplicable to the approved transaction.
The following summary of the material terms of the preferred stock purchase
rights is not meant to be complete and is qualified by reference to the rights
agreement that governs the issuance of the rights. See "Where You Can Find More
Information."
Evidence and Transferability of Preferred Stock Purchase Rights. The
preferred stock purchase rights will be evidenced by the certificates
representing shares of common stock until the earlier to occur of:
- 10 days following a public announcement or public disclosure of facts
made by us or an acquiring person that a person or group of affiliated or
associated persons has become an acquiring person, which occurs,
generally, when that person or group has acquired beneficial ownership of
common stock representing 15% or more of the total number of votes
entitled to be cast by the holders of common stock then outstanding; and
- 10 business days, or a later date established by our board of directors
before the time any person or group becomes an acquiring person,
following the commencement of, or the first public announcement of an
intention of any person or group to make, a tender offer or exchange
offer that, if completed, would result in the beneficial ownership by a
person or group of shares of common stock representing 15% or more of
such number of votes.
Until the rights distribution date or the earlier redemption or expiration
of the preferred stock purchase rights:
- the preferred stock purchase rights will be transferred only with the
transfer of shares of common stock;
- certificates representing shares of common stock which become outstanding
after the record date for the initial distribution of the rights, will
contain a notation incorporating the terms of the preferred stock
purchase rights by reference; and
- the surrender for transfer of any certificate representing shares of
common stock will also constitute the transfer of the preferred stock
purchase rights associated with the shares of common stock represented by
that certificate.
As soon as practicable following the rights distribution date, separate
certificates evidencing the preferred stock purchase rights will be mailed to
holders of record of the shares of common stock as of the close of
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business on the rights distribution date and those separate preferred stock
purchase rights certificates alone will evidence the rights.
Exempt Persons. We and certain persons affiliated with us are exempt from
the definition of acquiring person. An exception to the definition of acquiring
person in the rights agreement permits an institutional investor to be or become
the beneficial owner of our common stock representing 15% or more of the voting
power of the common stock then outstanding, subject to certain limitations
described below, without becoming an acquiring person, as long as the
institutional investor continues to be an institutional investor. Generally, an
institutional investor is a person who, as of January 31, 2000:
- beneficially owned more than 14% of the voting power of our common stock
then outstanding;
- had a Schedule 13G on file with the SEC with respect to its holdings;
- is principally engaged in the business of managing investment funds for
unaffiliated securities investors;
- acquires the common stock pursuant to trading activities undertaken in
the ordinary course of such person's business not with the purpose or
effect of exercising or influencing control over us; and
- is not obligated to and does not file a Schedule 13D with respect to our
securities.
If our board of directors determines that a person is no longer an
institutional investor, then this person will be required to divest itself as
promptly as practicable of a sufficient number of shares of common stock so that
this person beneficially owns less than 15% of the voting power of our common
stock then outstanding.
If our board of directors determines that this person does not divest
itself of common shares as required, then this person will be or become an
acquiring person under the rights agreement.
AXA Financial, Inc., as an institutional investor under the rights
agreement, is permitted to beneficially own, without triggering the rights under
the rights agreement, so long as it retains its status as a passive
institutional investor, up to 47% of the outstanding shares of common stock
through December 31, 2001, and, after December 31, 2001, the lesser of 47% of
the outstanding shares of common stock and the percentage of common stock
reported as beneficially owned by it in any Schedule 13G filed with the SEC
after December 31, 2001 (such that the percentage permitted to be beneficially
owned by it will be reduced (down to 25% of the outstanding shares of common
stock) to reflect reductions in its beneficial ownership percentage resulting
from subsequent sales of common stock or increases in the total number of shares
of common stock outstanding).
Exercisability of Rights. The preferred stock purchase rights are not
exercisable until the preferred stock purchase rights distribution date. The
preferred stock purchase rights will expire on November 20, 2008, unless the
expiration date is extended or unless the preferred stock purchase rights are
earlier redeemed or exchanged by us, in each case, as described below.
If any person becomes an acquiring person, each holder of a preferred stock
purchase right (other than preferred stock purchase rights beneficially owned by
the acquiring person, which will be void) will, after the date that any person
became an acquiring person, have the right to receive, upon exercise of those
preferred stock purchase rights at the then current exercise price, that number
of shares of common stock, or cash or other securities or assets in certain
circumstances, having a market value of two times the exercise price of the
preferred stock purchase right. If, at any time on or after the date that any
person has become an acquiring person, we are acquired in a merger or other
business combination transaction or 50% or more of our consolidated assets or
earning power are sold, each holder of a preferred stock purchase right will,
after the date of that transaction, have the right to receive, upon the exercise
of those preferred stock purchase rights at the then current exercise price of
the preferred stock purchase right, that number of shares of common stock of the
acquiring company which at the time of that transaction will have a market value
of two times the exercise price of the preferred stock purchase right.
The purchase price payable, and the number of shares of junior preferred
stock or other securities or property issuable, upon exercise of the preferred
stock purchase rights are subject to adjustment from time to time to prevent
dilution in some circumstances.
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Until a preferred stock purchase right is exercised, the holder of a
preferred stock purchase right will have no rights as a stockholder of our
company, including the right to vote or to receive dividends.
From and after the occurrence of an event described in Section 11(a)(ii) of
the rights agreement, if rights are or were, at any time on or after the earlier
of (1) the date of such event and (2) the distribution date, acquired or
beneficially owned by an acquiring person or an associate or affiliate of an
acquiring person, such rights shall become void, and any holder of such rights
shall thereafter have no right to exercise such rights.
Terms of Junior Preferred Stock. Shares of junior preferred stock, which
may be purchased upon exercise of the preferred stock purchase rights, will not
be redeemable. Each share of junior preferred stock will be entitled to receive
when, as and if declared by the board of directors, out of funds legally
available for the purpose, an amount per share equal to 1,000 times the cash or
non-cash dividend declared per share of common stock. In the event of
liquidation, the holders of the junior preferred stock will be entitled to
receive an aggregate payment equal to 1,000 times the payment made per share of
common stock. Each share of junior preferred stock will have 1,000 votes,
together with the common stock. Finally, in the event of any merger,
consolidation or other transaction in which the common stock is exchanged, each
share of junior preferred stock will be entitled to receive an amount equal to
1,000 times the amount received per share of common stock. The rights are
protected by customary antidilution provisions.
Exchange or Redemption. At any time after any person becomes an acquiring
person, and prior to the acquisition by any person or group of a majority of the
voting power, our board of directors may exchange the rights (other than rights
owned by such acquiring person which have become void), in whole or in part, at
an exchange ratio of one share of common stock per right (subject to
adjustment). We may, at our option, substitute preferred shares or common stock
equivalents for common stock, at the rate of one one-thousandth of a preferred
share for each share of common stock (subject to adjustment). No fractional
share of common stock will be issued and in lieu thereof, an adjustment in cash
will be made based on the market price of the share of common stock on the last
trading day prior to the date of exchange.
At any time prior to any person becoming an acquiring person, our board of
directors, by the required board vote, may redeem the rights in whole, but not
in part, at a redemption price of $.001 per right. The redemption of the rights
may be made effective at the time, on any basis and subject to the conditions
which our board of directors may establish. Immediately upon any redemption of
the rights (or upon a later date specified by our board of directors in the
resolution approving a redemption), the right to exercise the rights will
terminate and the only right of the holders of rights will be to receive the
redemption price. The redemption of the rights may be subject to certain
restrictions and limitations contained in our charter.
Our board of directors, by the required board vote, may amend the terms of
the rights without the consent of the holders of the rights, except that from
the time any person becomes an acquiring person, no amendment may adversely
affect the interests of the holders of the rights (other than the acquiring
person and its affiliates and associates). The right of our board of directors
to amend the rights agreement may be subject to certain restrictions and
limitations contained in our charter.
SERIES B PREFERRED STOCK
We have one outstanding share of Series B preferred stock, which is owned
by Northwest Airlines, Inc. Set forth below is a description of some of the
material provisions of the Series B preferred stock.
Ranking. The Series B preferred stock ranks junior to all classes of our
capital stock other than our common stock upon liquidation, dissolution or
winding up of our company.
Dividends. No dividends are payable on our Series B preferred stock.
Voting Rights. The holder of the Series B preferred stock has the right to
block certain actions we may seek to take including:
- certain business combinations and similar changes of control transactions
involving us and a third party major air carrier;
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- certain amendments to our rights plan (or redemption of those rights);
- any dividend or distribution of all or substantially all of our assets;
and
- certain reorganizations and restructuring transactions involving us.
Redemption. The Series B preferred stock is redeemable by us at a nominal
price under the following circumstances:
- Northwest Airlines transfers or encumbers the Series B preferred stock;
- there is a change of control of Northwest involving a third party major
air carrier;
- the Northwest Alliance terminates or expires (other than as a result of a
breach by us); or
- Northwest materially breaches its standstill obligations to us or
triggers our rights agreement (described below under "Description of
Common Stock").
CORPORATE GOVERNANCE AND CONTROL
Our certificate of incorporation provides that our board of directors will
consist of a number of directors as may be determined from time to time by the
board of directors in accordance with the bylaws. Our board of directors
currently consists of 13 directors elected by common stockholders, subject to
the rights of preferred stockholders to elect additional directors as set forth
in any preferred stock designations.
BUSINESS COMBINATIONS
Our certificate of incorporation provides that we are not governed by
Section 203 of the General Corporation Law of Delaware which, in the absence of
such provisions, would have imposed additional requirements regarding mergers
and other business combinations.
PROCEDURAL MATTERS
Our bylaws require stockholders seeking to nominate directors or propose
other matters for action at a stockholders' meeting to give us notice within
specified periods in advance of the meeting and to follow certain other
specified procedures.
CHANGE OF CONTROL
Because a separate class vote is required pursuant to the terms of the
Series B preferred stock in connection with some changes of control requiring
stockholder approval as described under "-- Series B Preferred Stock -- Voting
Rights," a change of control of our company could be delayed, deferred or
prevented.
In addition, the existence of the preferred stock purchase rights may have
the effect of delaying or preventing a change of control of our company. See
"-- Preferred Stock Purchase Rights" above.
LIMITATION OF DIRECTOR LIABILITY AND INDEMNIFICATION
Our certificate of incorporation provides, to the full extent permitted by
Delaware law, that directors will not be liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director. As required under
current Delaware law, our certificate of incorporation and bylaws currently
provide that this waiver may not apply to liability:
- for any breach of the director's duty of loyalty to us or our
stockholders;
- or acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
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- under Section 174 of the Delaware General Corporation Law (governing
distributions to stockholders); or
- for any transaction from which the director derived any improper personal
benefit.
However, in the event the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of any of our directors will be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended. Our certificate of incorporation further
provides that we will indemnify each of our directors and officers to the full
extent permitted by Delaware law and may indemnify certain other persons as
authorized by the Delaware General Corporation Law. These provisions do not
eliminate any monetary liability of directors under the federal securities laws.
DESCRIPTION OF DEPOSITARY SHARES
We may offer fractional shares of preferred stock, rather than full shares
of preferred stock. If we decide to offer fractional shares of preferred stock,
we will issue receipts for depositary shares. Each depositary share will
represent a fraction of a share of a particular series of preferred stock, and
the prospectus supplement will indicate that fraction. The shares of preferred
stock represented by depositary shares will be deposited under a deposit
agreement between our company and a depositary that is a bank or trust company
that meets certain requirements and is selected by us. The depositary will be
specified in the applicable prospectus supplement. Each owner of a depositary
share will be entitled to all of the rights and preferences of the preferred
stock represented by the depositary share. The depositary shares will be
evidenced by depositary receipts issued pursuant to the deposit agreement.
Depositary receipts will be distributed to those persons purchasing the
fractional shares of preferred stock in accordance with the terms of the
offering.
We have summarized selected provisions of the deposit agreement and the
depositary receipts, but the summary is qualified by reference to the provisions
of the depositary agreement and the depositary receipts. The particular terms of
any series of depositary shares will be described in the applicable prospectus
supplement. If so indicated in the prospectus supplement, the terms of any such
series may differ from the terms set forth below.
DIVIDENDS
The depositary will distribute all cash dividends or other cash
distributions received by it in respect of the preferred stock to the record
holders of depositary shares relating to such preferred shares in proportion to
the numbers of depositary shares held on the relevant record date. The amount
made available for distribution will be reduced by any amounts withheld by the
depositary or us on account of taxes.
In the event of a distribution other than in cash, the depositary will
distribute securities or property received by it to the record holders of
depositary shares in proportion to the numbers of depositary shares held on the
relevant record date, unless the depositary determines that it is not feasible
to make such distribution. In that case, the depositary may make the
distribution by such method as it deems equitable and practicable. One such
possible method is for the depositary to sell the securities or property and
then distribute the net proceeds from the sale as provided in the case of a cash
distribution.
WITHDRAWAL OF SHARES
Upon surrender of depositary receipts representing any number of whole
shares at the depositary's office, unless the related depositary shares
previously have been called for redemption, the holder of the depositary shares
evidenced by the depositary receipts will be entitled to delivery of the number
of whole shares of the related series of preferred stock and all money and other
property, if any, underlying such depositary shares. However, once such an
exchange is made, the preferred stock cannot thereafter be redeposited in
exchange for depositary shares. Holders of depositary shares will be entitled to
receive whole shares of the related series of preferred stock on the basis set
forth in the applicable prospectus supplement. If the depositary receipts
delivered by the holder evidence a number of depositary shares representing more
than the number of whole
43
shares of preferred stock of the related series to be withdrawn, the depositary
will deliver to the holder at the same time a new depositary receipt evidencing
the excess number of depositary shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever we redeem the preferred stock, the depositary will redeem a number
of depositary shares representing the same number of shares of preferred stock
so redeemed. If fewer than all of the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot, pro rata or by any
other equitable method as the depositary may determine.
VOTING OF UNDERLYING SHARES
Upon receipt of notice of any meeting at which the holders of the preferred
stock of any series are entitled to vote, the depositary will mail the
information contained in the notice of the meeting to the record holders of the
depositary shares relating to that series of preferred shares. Each record
holder of the depositary shares on the record date will be entitled to instruct
the depositary as to the exercise of the voting rights represented by the number
of shares of preferred stock underlying the holder's depositary shares. The
depositary will endeavor, to the extent it is practical to do so, to vote the
number of whole shares of preferred stock underlying such depositary shares in
accordance with such instructions. We will agree to take all action that the
depositary may deem reasonably necessary in order to enable the depositary to do
so. To the extent the depositary does not receive specific instructions from the
holders of depositary shares relating to such preferred shares, it will abstain
from voting such shares of preferred stock.
AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the applicable deposit agreement may at any time be amended by
agreement between us and the depositary. We may, with the consent of the
depositary, amend the deposit agreement from time to time in any manner that we
desire. However, if the amendment would materially and adversely alter the
rights of the existing holders of depositary shares, the amendment would need to
be approved by the holders of at least a majority of the depositary shares then
outstanding.
The deposit agreement may be terminated by us or the depositary if:
- all outstanding depositary shares have been redeemed; or
- there has been a final distribution in respect of the shares of preferred
stock of the applicable series in connection with our liquidation,
dissolution or winding up and such distribution has been made to the
holders of depositary receipts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering to us notice of its
election to do so. We may remove a depositary at any time. Any resignation or
removal will take effect upon the appointment of a successor depositary and its
acceptance of appointment.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of any depositary arrangements. We will pay all
charges of each depositary in connection with the initial deposit of the
preferred shares of any series, the initial issuance of the depositary shares,
any redemption of such preferred shares and any withdrawals of such preferred
shares by holders of depositary shares. Holders of depositary shares will be
required to pay any other transfer taxes.
44
NOTICES
Each depositary will forward to the holders of the applicable depositary
shares all notices, reports and communications from us which are delivered to
such depositary and which we are required to furnish the holders of the
preferred shares.
LIMITATION OF LIABILITY
The deposit agreement contains provisions that limit our liability and the
liability of the depositary to the holders of depositary shares. Both the
depositary and we are also entitled to an indemnity from the holders of the
depositary shares prior to bringing, or defending against, any legal proceeding.
We or any depositary may rely upon written advice of counsel or accountants, or
information provided by persons presenting preferred shares for deposit, holders
of depositary shares or other persons believed by us or it to be competent and
on documents believed by us or them to be genuine.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase any of our securities. We may issue
warrants independently or together with any other securities offered by any
prospectus supplement and the warrants may be attached to or separate from those
securities. Each series of warrants will be issued under a separate warrant
agreement, to be entered into between us and a warrant agent specified in a
prospectus supplement. The warrant agent will act solely as our agent in
connection with the warrants of such series and will not assume any obligation
or relationship of agency or trust with any of the holders of the warrants. We
will set forth further terms of the warrants and the applicable warrant
agreements in the applicable prospectus supplement relating to the issuance of
any warrants, including, where applicable, the following:
- the title of the warrants;
- the aggregate number of the warrants;
- the number and type of securities purchasable upon exercise of the
warrants;
- the designation and terms of the securities, if any, with which the
warrants are issued and the number of the warrants issued with each such
offered security;
- the date, if any, on and after which the warrants and the related
securities will be separately transferable;
- the price at which each security purchasable upon exercise of the
warrants may be purchased;
- the date on which the right to exercise the warrants shall commence and
the date on which the right shall expire;
- the minimum or maximum amount of the warrants which may be exercised at
any one time;
- any circumstances that will cause the warrants to be deemed to be
automatically exercised; and
- any other material terms of the warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating
holders to purchase from us, and obligating us to sell to the holders, a
specified number of shares of common stock or other securities at a future date
or dates, which we refer to in this prospectus as "stock purchase contracts."
The price per share of the securities and the number of shares of the securities
may be fixed at the time the stock purchase contracts are issued or may be
determined by reference to a specific formula set forth in the stock purchase
contracts. The stock purchase contracts may be issued separately or as part of
units consisting of a stock purchase contract and debt securities, preferred
securities, warrants or debt obligations of third parties, including U.S.
treasury securities, securing the holders' obligations to purchase the
securities under the stock purchase contracts,
45
which we refer to herein as "stock purchase units." The stock purchase contracts
may require holders to secure their obligations under the stock purchase
contracts in a specified manner. The stock purchase contracts also may require
us to make periodic payments to the holders of the stock purchase units or vice
versa, and those payments may be unsecured or refunded on some basis.
The applicable prospectus supplement will describe the terms of the stock
purchase contracts or stock purchase units. The description in the prospectus
supplement will not necessarily be complete, and reference will be made to the
stock purchase contracts, and, if applicable, collateral or depositary
arrangements, relating to the stock purchase contracts or stock purchase units,
which will be filed with the SEC each time we issue stock purchase contracts or
stock purchase units. Material United States federal income tax considerations
applicable to the stock purchase units and the stock purchase contracts will
also be discussed in the applicable prospectus supplement.
PLAN OF DISTRIBUTION
Any of the securities being offered hereby may be sold in any one or more
of the following ways from time to time:
- through agents;
- to or through underwriters;
- through dealers;
- directly by us; or
- in the case of trust preferred securities, by the trust to purchasers.
The distribution of the securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
Offers to purchase securities may be solicited by agents designated by us
from time to time. Any such agent involved in the offer or sale of the
securities in respect of which this prospectus is delivered will be named, and
any commissions payable by us or the trust to such agent will be set forth, in
the applicable prospectus supplement. Unless otherwise indicated in such
prospectus supplement, any such agent will be acting on a reasonable best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act of 1933, of the
securities so offered and sold.
If securities are sold by means of an underwritten offering, we and, in the
case of an offering of trust preferred securities, the trust will execute an
underwriting agreement with an underwriter or underwriters at the time an
agreement for such sale is reached, and the names of the specific managing
underwriter or underwriters, as well as any other underwriters, the respective
amounts underwritten and the terms of the transaction, including commissions,
discounts and any other compensation of the underwriters and dealers, if any,
will be set forth in the applicable prospectus supplement which will be used by
the underwriters to make resales of the securities in respect of which this
prospectus is being delivered to the public. If underwriters are utilized in the
sale of any securities in respect of which this prospectus is being delivered,
such securities will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices or at varying prices
determined by the underwriters at the time of sale. Securities may be offered to
the public either through underwriting syndicates represented by managing
underwriters or directly by one or more underwriters. If any underwriter or
underwriters are utilized in the sale of securities, unless otherwise indicated
in the applicable prospectus supplement, the underwriting agreement will provide
that the obligations of the underwriters are subject to certain conditions
precedent and that the underwriters with respect to a sale of such securities
will be obligated to purchase all such securities if any are purchased.
We or the trust, as applicable, may grant to the underwriters options to
purchase additional securities, to cover over-allotments, if any, at the initial
public offering price (with additional underwriting commissions or
46
discounts), as may be set forth in the prospectus supplement relating thereto.
If we or the trust, as applicable, grants any over-allotment option, the terms
of such over-allotment option will be set forth in the prospectus supplement for
such securities.
If a dealer is used in the sale of the securities in respect of which this
prospectus is delivered, we or the trust, as applicable, will sell such
securities to the dealer as principal. The dealer may then resell such
securities to the public at varying prices to be determined by such dealer at
the time of resale. Any such dealer may be deemed to be an underwriter, as such
term is defined in the Securities Act, of the securities so offered and sold.
The name of the dealer and their terms of the transaction will be set forth in
the prospectus supplement relating thereto.
Offers to purchase securities may be solicited directly by us or the trust,
as applicable, and the sale thereof may be made by us or the trust directly to
institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act of 1933 with respect to any resale thereof.
The terms of any such sales will be described in the prospectus supplement
relating thereto.
Securities may also be offered and sold, if so indicated in the applicable
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("remarketing firms") acting as principals for their own
accounts or as agents for us or the trust, as applicable. Any remarketing firm
will be identified and the terms of its agreement, if any, with us or the trust
and its compensation will be described in the applicable prospectus supplement.
Remarketing firms may be deemed to be underwriters, as that term is defined in
the Securities Act of 1933, in connection with the securities remarketed
thereby.
If so indicated in the applicable prospectus supplement, we or the trust,
as applicable, may authorize agents and underwriters to solicit offers by
certain institutions to purchase securities from us or the trust at the public
offering price set forth in the applicable prospectus supplement pursuant to
delayed delivery contracts providing for payment and delivery on the date or
dates stated in the applicable prospectus supplement. Such delayed delivery
contracts will be subject to only those conditions set forth in the applicable
prospectus supplement. A commission indicated in the applicable prospectus
supplement will be paid to underwriters and agents soliciting purchases of
securities pursuant to delayed delivery contracts accepted by us or the trust,
as applicable.
Agents, underwriters, dealers and remarketing firms may be entitled under
relevant agreements with us or the trust, as applicable, to indemnification by
us or the trust against certain liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which such agents,
underwriters, dealers and remarketing firms may be required to make in respect
thereof.
Each series of securities will be a new issue and will have no established
trading market. We may elect to list any series of securities on an exchange
but, unless otherwise specified in the applicable prospectus supplement, we
shall not be obligated to do so. No assurance can be given as to the liquidity
of the trading market for any of the securities.
Agents, underwriters, dealers and remarketing firms may be customers of,
engage in transactions with, or perform services for, us and our subsidiaries in
the ordinary course of business.
LEGAL MATTERS
Unless otherwise specified in the applicable prospectus supplement, the
validity of the securities (other than the preferred securities of the trust)
will be passed upon for us by Vinson & Elkins L.L.P., Houston, Texas, and will
be passed upon for any agents, dealers or underwriters by counsel named in the
applicable prospectus supplement. The validity of the trust preferred securities
of the trust under Delaware law will be passed upon for us and the trust by
Morris, Nichols, Arsht & Tunnell, special Delaware counsel to us and the trust.
47
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended December 31, 2000 as set forth in their reports, which are
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
48
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the distribution of the securities covered by this Registration Statement.
Continental Airlines, Inc. (the "company") will bear all of these expenses
except as otherwise indicated.
Registration fee............................................ $125,000
Fees and expenses of accountants............................ 30,000
Fees and expenses of legal counsel.......................... 150,000
Fees and expenses of trustee and counsel.................... 10,000
Fees of rating agencies..................................... 75,000
Blue Sky fees and expenses (including counsel).............. 5,000
Printing and engraving expenses............................. 75,000
Miscellaneous............................................... 10,000
--------
Total............................................. $480,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 102 of the Delaware General Corporation Law (the
"DGCL"), our Amended and Restated Certificate of Incorporation provides that, to
the fullest extent permitted by Delaware law, no director shall be liable to us
or our stockholders for monetary damages for breach of fiduciary duty as
director. By virtue of these provisions, a director is not personally liable for
monetary damages for breach of such director's fiduciary duty except for
liability for (i) breach of duty of loyalty, (ii) acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) dividends or stock repurchases or redemptions that are unlawful under the
DGCL and (iv) any transaction from which such director receives an improper
personal benefit. In addition, our Amended and Restated Certificate of
Incorporation provides that if the DGCL is amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
the directors will be eliminated or limited to the fullest extent permitted by
the DGCL, as amended. As a result, our rights and our stockholders' rights to
obtain monetary damages for acts or omissions of directors will be more limited
than they would be in the absence of the limitation of liability provision. The
limitation of liability provision does not limit or affect a stockholder's
ability to seek and obtain relief under the federal securities laws.
Section 145 of the DGCL permits indemnification upon a determination that
an officer or director has met the applicable standard of conduct. Such officer
or director is required to have acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of a corporation and,
with respect to any criminal action, without reasonable cause to believe his
conduct was unlawful. Section 145 does not authorize indemnification in actions
brought by or in the right of a corporation with respect to any claim, issue or
matter as to which a director or officer is adjudged to be liable to the
corporation, unless specifically authorized by the Delaware Court of Chancery or
the court in which such action is brought. Our Amended and Restated Certificate
of Incorporation provides for the mandatory indemnification of officers and
directors to the fullest extent permitted under the DGCL. Section 145 also
expressly provides that the power to indemnify authorized thereby is not
exclusive of any rights granted under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise.
The above discussion of our Amended and Restated Certificate of
Incorporation and of Sections 102 and 145 of the DGCL is not intended to be
exhaustive and is qualified in its entirety by our Amended and Restated
Certificate of Incorporation and the DGCL.
II-1
We have purchased liability insurance policies covering our directors and
officers to insure against certain losses incurred by them.
The form of Amended and Restated Declaration of Trust provides that we will
indemnify, to the fullest extent permitted by law, any administrative trustee,
any officer, director, shareholder, member, partner, employee, representative,
agent or affiliate thereof and any officer, employee or agent of the trust or
our affiliates (each a "Company Indemnified Person"), who is or was a party to
any threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the trust) by reason of the fact the he is or was a
Company Indemnified Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the trust, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The Amended and Restated Declaration of Trust provides that no
indemnification will be made in respect of any claim, issue or matter as to
which a Company Indemnified Person is adjudged liable to the Trust unless the
Court of Chancery of Delaware or the court in which such action or suit was
brought determines that such Company Indemnified Person is entitled to indemnity
for such expenses as such Court of Chancery or other court deems proper. To the
extent that a Company Indemnified Person is successful on the merits or
otherwise in defense of any action, suit or proceeding, he shall be indemnified,
to the full extent permitted by law, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith. Expenses
incurred by a Company Indemnified Person in defending an action, suit or
proceeding may be advanced by us in certain circumstances.
The form of Amended and Restated Declaration of Trust also provides that we
will indemnify the property trustee, the Delaware trustee and any officer,
director, shareholder, member, partner, employee, representative, custodian,
nominee, agent or affiliate thereof (each a "Fiduciary Indemnified Person"), for
and to hold each Fiduciary Indemnified Person harmless against, any and all
loss, liability, damage, claim or expense including taxes incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust.
ITEM 16. EXHIBITS.
**1.1 -- Form of Underwriting Agreement.
4.1 -- Amended and Restated Certificate of Incorporation of the
company (incorporated by reference to Exhibit 3.1 to the
company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000).
4.2 -- Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 3.1(a)
to the company's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000).
4.3 -- Certificate of Designation of Series B Preferred Stock
(incorporated by reference to Exhibit 3.1(b) to the
company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000).
4.4 -- Bylaws of Continental to date (incorporated by reference to
Exhibit 3.2 to the company's Annual Report on Form 10-K for
the fiscal year ended December 31, 2000).
4.5 -- Amended and Restated Rights Agreement, dated as of November
15, 2000, between Continental and ChaseMellon Shareholder
Services, LLC (incorporated by reference to Exhibit 99.11 to
Continental's Current Report on Form 8-K dated November 16,
2000).
4.6 -- Form of Rights Certificate, included as Exhibit B to Exhibit
4.5 (incorporated by reference to Exhibit 99.11 to the Form
8-K dated November 16, 2000).
4.7 -- Warrant Agreement dated as of April 27, 1993, between the
Company and the Company, as warrant agent (incorporated by
reference to Exhibit 4.7 to the Company's Form 8-K filed
with the SEC on April 16, 1993).
4.8 -- Senior Debt Indenture by and between the Company and Bank
One, N.A., dated as of July 15, 1997 (incorporated by
reference to Exhibit 4.2 of the Company's Current Report on
Form 8-K filed with the SEC on December 10, 1998).
II-2
4.9 -- Form of Subordinated Debt Indenture (incorporated by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-3 filed with the SEC on June 16, 1997).
**4.10 -- Form of Debt Securities.
4.11 -- Specimen Class B Common Stock Certificate of the company
(incorporated by reference to Exhibit 4.1 to Continental's
Form S-1 Registration Statement (No. 333-68870).
**4.12 -- Form of Preferred Stock Certificate.
**4.13 -- Form of Depositary Agreement.
**4.14 -- Form of Depositary Receipt.
**4.15 -- Form of Warrants.
*4.16 -- Certificate of Trust of Continental Airlines Finance Trust
III.
*4.17 -- Declaration of Trust of Continental Airlines Finance Trust
III.
*4.18 -- Form of Amended and Restated Declaration of Trust of
Continental Airlines Finance Trust III.
*4.19 -- Form of Trust Preferred Security Certificate for Continental
Airlines Finance Trust III (included in Exhibit 4.18).
*4.20 -- Form of Junior Subordinated Indenture between the Company
and Bank One Trust Company, N.A.
*4.21 -- Form of Trust Debentures of the Company (included in Exhibit
4.20).
*4.22 -- Form of Preferred Securities Guarantee in respect of
Continental Airlines Finance Trust III, with respect to the
Trust Preferred Securities.
**4.23 -- Form of Stock Purchase Contracts.
**4.24 -- Form of Stock Purchase Units.
*5.1 -- Opinion of Vinson & Elkins L.L.P., as to the validity of the
securities (other than the trust preferred securities).
*5.2 -- Opinion of Morris, Nichols, Arsht & Tunnell, as to the
validity of the trust preferred securities.
*12.1 -- Calculation of Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Ernst & Young LLP.
*23.2 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1)
*23.3 -- Consent of Morris, Nichols, Arsht & Tunnell (included in
Exhibit 5.2).
*24.1 -- Powers of Attorney.
*25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Senior Debt Indenture.
***25.2 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Subordinated Debt Indenture.
*25.3 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the debenture trustee
under Junior Subordinated Indenture.
*25.4 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the guarantee trustee
under the Preferred Securities Guarantee.
*25.5 -- Form T-1 Statement of Eligibility and Qualification of the
property trustee under the Amended and Restated Declaration
of Trust of Continental Airlines Finance Trust III under the
Trust Indenture Act of 1939.
---------------
* Filed herewith.
** To be filed by amendment or in a Current Report on Form 8-K.
*** To be filed in accordance with section 305(b)(2) of the Trust Indenture Act
and Rules 5b-1 through 5b-2 thereunder.
Note: Continental Airlines, Inc. hereby agrees to furnish to the SEC, upon
request, copies of certain instruments defining the rights of holders of
long-term debt of the kind described in Item 601(b)(4)(iii)(A) of
Regulation S-K.
II-3
ITEM 17. UNDERTAKINGS
The undersigned registrants hereby undertake:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
a. To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
b. To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee", table in the
effective registration statement; and
c. To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the undertakings set forth in clauses a and b above do
not apply if information required to be included in a post-effective amendment
by those clauses is contained in periodic reports filed with the Securities and
Exchange 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.
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 purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
5. That, for purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
6. 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 ("Act") in accordance with the rules and regulations prescribed by the SEC
under Section 305(b)(2) of the Act.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-4
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 provisions set forth in response to Item 15, or
otherwise, the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. If 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.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrants
certify that they have reasonable grounds to believe that they meet all of the
requirements for filing on Form S-3 and have duly caused this registration
statement to be signed on their behalf by the undersigned, thereunto duly
authorized in the City of Houston, State of Texas, October 19, 2001.
CONTINENTAL AIRLINES, INC.
By: /s/ JEFFREY J. MISNER
------------------------------------
Name: Jeffrey J. Misner
Title: Senior Vice
President -- Finance
CONTINENTAL AIRLINES FINANCE TRUST III
By: /s/ JACQUES LAPOINTE
------------------------------------
Name: Jacques Lapointe
Title: Administrative Trustee
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on behalf of the following persons in the
capacities indicated, on October 19, 2001.
SIGNATURE TITLE
--------- -----
* Chairman of the Board, Chief Executive Officer
------------------------------------------------- (Principal Executive Officer) and Director
Gordon M. Bethune
* Senior Vice President -- Finance
------------------------------------------------- (Principal Financial Officer)
Jeffrey J. Misner
* Staff Vice President and Controller
------------------------------------------------- (Principal Accounting Officer)
Chris T. Kenny
* Director
-------------------------------------------------
Thomas J. Barrack, Jr.
* Director
-------------------------------------------------
David Bonderman
* Director
-------------------------------------------------
Kirbyjon H. Caldwell
* Director
-------------------------------------------------
Patrick Foley
II-6
SIGNATURE TITLE
--------- -----
* Director
-------------------------------------------------
Lawrence W. Kellner
* Director
-------------------------------------------------
Douglas H. McCorkindale
* Director
-------------------------------------------------
George G. C. Parker
* Director
-------------------------------------------------
Richard W. Pogue
* Director
-------------------------------------------------
William S. Price III
* Director
-------------------------------------------------
Donald L. Sturm
* Director
-------------------------------------------------
Karen Hastie Williams
* Director
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Charles A. Yamarone
*By: /s/ JENNIFER L. VOGEL
------------------------------------------
Name: Jennifer L. Vogel
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on behalf of Continental Airlines Finance
Trust III by the following persons in the capacities indicated, on October 19,
2001.
SIGNATURE TITLE
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/s/ JACQUES LAPOINTE Administrative Trustee
------------------------------------------------
Jacques Lapointe
/s/ JEFFREY J. MISNER Administrative Trustee
------------------------------------------------
Jeffery J. Misner
II-7
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
------- -----------
**1.1 -- Form of Underwriting Agreement.
4.1 -- Amended and Restated Certificate of Incorporation of the
company (incorporated by reference to Exhibit 3.1 to the
company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000).
4.2 -- Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 3.1(a)
to the company's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000).
4.3 -- Certificate of Designation of Series B Preferred Stock
(incorporated by reference to Exhibit 3.1(b) to the
company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000).
4.4 -- Bylaws of Continental to date (incorporated by reference to
Exhibit 3.2 to the company's Annual Report on Form 10-K for
the fiscal year ended December 31, 2000).
4.5 -- Amended and Restated Rights Agreement, dated as of November
15, 2000, between Continental and ChaseMellon Shareholder
Services, LLC (incorporated by reference to Exhibit 99.11 to
Continental's Current Report on Form 8-K dated November 16,
2000).
4.6 -- Form of Rights Certificate, included as Exhibit B to Exhibit
4.5 (incorporated by reference to Exhibit 99.11 to the Form
8-K dated November 16, 2000).
4.7 -- Warrant Agreement dated as of April 27, 1993, between the
Company and the Company, as warrant agent (incorporated by
reference to Exhibit 4.7 to the Company's Form 8-K filed
with the SEC on April 16, 1993).
4.8 -- Senior Debt Indenture by and between the Company and Bank
One, N.A., dated as of July 15, 1997 (incorporated by
reference to Exhibit 4.2 of the Company's Current Report on
Form 8-K filed with the SEC on December 10, 1998).
4.9 -- Form of Subordinated Debt Indenture (incorporated by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-3 filed with the SEC on June 16, 1997).
**4.10 -- Form of Debt Securities.
4.11 -- Specimen Class B Common Stock Certificate of the company
(incorporated by reference to Exhibit 4.1 to Continental's
Form S-1 Registration Statement (No. 333-68870).
**4.12 -- Form of Preferred Stock Certificate.
**4.13 -- Form of Depositary Agreement.
**4.14 -- Form of Depositary Receipt.
**4.15 -- Form of Warrants.
*4.16 -- Certificate of Trust of Continental Airlines Finance Trust
III.
*4.17 -- Declaration of Trust of Continental Airlines Finance Trust
III.
*4.18 -- Form of Amended and Restated Declaration of Trust of
Continental Airlines Finance Trust III.
*4.19 -- Form of Trust Preferred Security Certificate for Continental
Airlines Finance Trust III (included in Exhibit 4.18).
*4.20 -- Form of Junior Subordinated Indenture between the Company
and Bank One Trust Company, N.A.
*4.21 -- Form of Trust Debentures of the Company (included in Exhibit
4.20).
*4.22 -- Form of Preferred Securities Guarantee in respect of
Continental Airlines Finance Trust III, with respect to the
Trust Preferred Securities.
**4.23 -- Form of Stock Purchase Contracts.
**4.24 -- Form of Stock Purchase Units.
*5.1 -- Opinion of Vinson & Elkins L.L.P., as to the validity of the
securities (other than the trust preferred securities).
*5.2 -- Opinion of Morris, Nichols, Arsht & Tunnell, as to the
validity of the trust preferred securities.
EXHIBIT
NO. DESCRIPTION
------- -----------
*12.1 -- Calculation of Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Ernst & Young LLP.
*23.2 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1)
*23.3 -- Consent of Morris, Nichols, Arsht & Tunnell (included in
Exhibit 5.2).
*24.1 -- Powers of Attorney.
*25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Senior Debt Indenture.
***25.2 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Subordinated Debt Indenture.
*25.3 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the debenture trustee
under Junior Subordinated Indenture.
*25.4 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the guarantee trustee
under the Preferred Securities Guarantee.
*25.5 -- Form T-1 Statement of Eligibility and Qualification of the
property trustee under the Amended and Restated Declaration
of Trust of Continental Airlines Finance Trust III under the
Trust Indenture Act of 1939.
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* Filed herewith.
** To be filed by amendment or in a Current Report on Form 8-K.
*** To be filed in accordance with section 305(b)(2) of the Trust Indenture Act
and Rules 5b-1 through 5b-2 thereunder.