AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 8, 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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FIRST DATA CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 47-0731996
(State or other jurisdiction of incorporation or (I.R.S. employer identification number)
organization)
5660 New Northside Drive
Suite 1400
Atlanta, Georgia 30328-5800
(770) 857-0001
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Michael T. Whealy
Executive Vice President, Chief Administrative Officer
and General Counsel
First Data Corporation
5660 New Northside Drive
Suite 1400
Atlanta, Georgia 30328-5800
(770) 857-0001
(Name and address including zip code, and telephone
number, including area code, of agent for service)
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COPIES TO:
Thomas A. Rossi, Esq. Fredrick C. Lowinger, Esq.
First Data Corporation Sidley & Austin
10825 Old Mill Road Bank One Plaza
Stop Code M-10 10 South Dearborn Street
Omaha, Nebraska 68154 Chicago, Illinois 60603
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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. / /
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CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER UNIT(2) OFFERING PRICE(2) REGISTRATION FEE
Debt Securities.............................
Common Stock(3)............................. $1,500,000,000 100% $1,500,000,000 $375,000
Preferred Stock(3)..........................
(1) Such indeterminate number or amount of debt securities, common stock and
preferred stock as may from time to time be issued at indeterminate prices.
Plus an additional amount of debt securities issued with an original issue
discount such that the aggregate initial public offering price of all
securities registered hereby will not exceed $1,500,000,000 in U.S. dollars
or the U.S. dollar equivalent in foreign currency or currency units.
(2) Estimated solely for the purpose of calculating the registration fee. The
aggregate initial public offering price of the securities registered hereby
will not exceed $1,500,000,000 in U.S. dollars or the U.S. dollar equivalent
in foreign currency or currency units.
(3) Also includes such presently indeterminable number of shares of common stock
and preferred stock as may be issued upon conversion or exchange of any debt
securities or preferred stock that provide for conversion into or exchange
for other securities. No separate consideration will be received for the
common stock or preferred stock issuable upon such conversion or exchange.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE AS MAY
BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a)
MAY DETERMINE.
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SUBJECT TO COMPLETION, DATED MARCH 8, 2001
PROSPECTUS
$1,500,000,000
FIRST DATA CORPORATION
SECURITIES
------------------------
First Data Corporation may offer from time to time, at prices and on terms
to be determined at or prior to the time of sale, the following securities with
an aggregate initial public offering price not to exceed $1,500,000,000 (or the
equivalent thereof if any securities are denominated in one or more foreign
currencies or foreign currency units):
- unsecured debt securities, consisting of debentures, notes and/or other
unsecured evidences of indebtedness, in one or more series;
- shares of our preferred stock, in one or more series; or
- shares of our common stock.
We will describe the specific terms of these securities, together with the
terms of the offering, the initial public offering price and our net proceeds
from the sale thereof, in supplements to this Prospectus. You should read both
this Prospectus and the applicable Prospectus Supplement before you invest.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
We may sell these securities directly to purchasers, through agents we may
designate from time to time or to or through underwriters. If any agents or
underwriters are involved in the sale of securities, we will specify the names
of those agents or underwriters and any applicable commission or discount in the
applicable Prospectus Supplement. Our net proceeds from the sale of securities
will be the initial public offering price of those securities less the
applicable discount, in the case of an offering through an underwriter, or the
purchase price of those securities less the applicable commission, in the case
of an offering through an agent, and, in each case, less other expenses payable
by us in connection with the issuance and distribution of those securities.
The date of this Prospectus is , 2001.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission, or SEC. You may read
and copy any document we file at the SEC's public reference room at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, and at the regional offices of
the SEC located at 7 World Trade Center, 13th Floor, New York, New York 10048
and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661, or you may obtain copies of any document we file at prescribed rates by
writing to the Public Reference Section of the SEC in Washington, D.C. Please
call the SEC at 1-800-SEC-0330 for further information on the operation of the
public reference room. Our SEC filings are also available to the public over the
Internet on the SEC's web site at http://www.sec.gov. In addition, our common
stock is listed on the New York Stock Exchange, and you may inspect copies of
any documents we file with the SEC at the offices of The New York Stock
Exchange, Inc., 20 Broad Street, New York, NY 10005.
The SEC allows us to "incorporate by reference" the information we file with
it, which means that we can disclose important information to you by referring
you to previously filed documents. The information incorporated by reference is
considered to be part of this Prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the following documents we filed with the SEC (file
number 001-11073) and any future filings that we make with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until
we or any agents or underwriters sell all of the securities:
- Our Annual Report on Form 10-K for the year ended December 31, 1999;
- Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2000,
June 30, 2000 and September 30, 2000;
- Our Current Reports on Form 8-K filed on January 25, 2001, February 21,
2001, February 22, 2001 and February 28, 2001; and
- The description of our common stock contained in our Registration
Statement on Form 8-A dated March 24, 1992, together with any and all
amendments and reports filed for the purpose of updating that description.
Any statement contained in this Prospectus or in a document incorporated by
reference in this Prospectus shall be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement contained in this
Prospectus, the accompanying Prospectus Supplement or any subsequently filed
document which is incorporated by reference in this Prospectus modifies or
supersedes that statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
This Prospectus is part of, and does not contain all information set forth
in, a Registration Statement on Form S-3 that we have filed with the SEC under
the Securities Act of 1933, as amended, with respect to the securities we are
offering. We refer you to the Registration Statement, including the exhibits
thereto, for further information regarding our company and the securities
offered by this Prospectus.
You may request a copy of any of the documents listed above (other than
exhibits to those documents that are not specifically incorporated by reference
therein), at no cost, by writing or telephoning us at:
First Data Corporation
5660 New Northside Drive
Atlanta, Georgia 30328
Attention: Investor Relations
(770) 857-7118
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FIRST DATA CORPORATION
We operate in four business segments: payment instruments, merchant
services, card issuer services and emerging payments. Payment instruments
includes Western Union, Integrated Payment Systems and Orlandi Valuta Companies
and is the leading provider of nonbank domestic and international money transfer
and payment services to consumers and commercial entities, including money
transfer, official check and money order services. Merchant services is
primarily comprised of First Data Merchant Services, TeleCheck and First Data
Financial Services. This segment provides merchants with credit and debit card
transaction processing services, including authorization, transaction capture,
settlement, Internet-based transaction processing, check verification and
guarantee services. Card issuer services encompasses domestic and international
card processing services. This segment provides a comprehensive line of
processing and related services to financial institutions issuing credit and
debit cards and to issuers of oil and private label credit cards, including
information-based products for enhanced decision making and marketing. First
Data Solutions is also included in the card issuer services segment, providing
consumer and business solutions in the areas of risk and fraud management and
information verification associated with granting of credit, debit and customer
service collecting. The emerging payments segment, created in the third quarter
of 2000, consists of eOne Global, a leader in identifying, commercializing and
operating emerging payment technologies that support Internet and wireless
payment products. The remainder of our business units are grouped in the "All
Other and Corporate" category, which includes TeleServices, Call Interactive,
International Banking Technologies and Corporate operations.
Our principal executive offices are located at 5660 New Northside Drive,
Suite 1400, Atlanta, Georgia 30328-5800, telephone (770) 857-0001.
USE OF PROCEEDS
Unless we indicate otherwise in the applicable Prospectus Supplement, we
expect to use our net proceeds from the sale of the securities for general
corporate purposes. We will describe in the applicable Prospectus Supplement any
specific allocation of the proceeds to a particular purpose that we have made at
the date of that Prospectus Supplement.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratios of earnings to fixed charges for
the periods indicated. We have not issued any preferred stock to date;
therefore, the ratios of earnings to combined fixed charges and preferred stock
dividends are the same as the ratios of earnings to fixed charges set forth
below.
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------------------------- -------------------
1995(1) 1996 1997(2) 1998(3) 1999(4) 1999(5) 2000(6)
-------- -------- -------- -------- -------- -------- --------
Ratio of earnings to fixed charges... 2.03x 7.19x 5.11x 5.70x 12.54x 7.29x 10.72x
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(1) Includes a merger, integration and impairment charge of $645.7 million
relating to our October 27, 1995 merger with First Financial Management
Corporation. The ratio of earnings to fixed charges without this charge
would have been 6.00x.
(2) Includes restructuring, net loss on business divestitures and impairment
charges of $369.3 million ($333.9 million after tax). The ratio of earnings
to fixed charges without these charges would have been 7.25x.
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(3) Includes restructuring, net loss on business divestitures and impairment
charges and provision for loss on contract of $319.1 million
($231.5 million after tax). The ratio of earnings to fixed charges without
these charges would have been 7.80x.
(4) Includes net restructuring, business divestitures, litigation and impairment
benefit of $715.8 million ($417.6 million after tax). The ratio of earnings
to fixed charges without this benefit would have been 8.01x.
(5) Includes restructuring, business divestitures, litigation and impairment
charges of $41.0 million for the nine months ended September 30, 1999. The
ratio of earnings to fixed charges without this charge would have been
7.65x.
(6) Includes a net gain from restructuring and business divestiture activities
of $100.6 million. The ratio of earnings to fixed charges without this gain
would have been 9.71x.
The computation of the ratio of earnings to fixed charges is based on
applicable amounts for us and our consolidated subsidiaries. "Earnings" consist
of income before income taxes plus fixed charges. "Fixed charges" consist of
interest on debt, amortization of deferred financing costs and a portion of
rentals that we determine to be representative of interest.
DESCRIPTION OF DEBT SECURITIES
We will issue the debt securities, which may be senior debt securities
and/or subordinated debt securities, in one or more series. Senior debt
securities will be issued under an indenture dated as of March 26, 1993, as
supplemented from time to time, between us and Wells Fargo Bank Minnesota,
National Association, as trustee, which we will refer to as the senior
indenture, and subordinated debt securities will be issued under an indenture
dated as of April 1, 1996, as supplemented from time to time, between us and The
Bank of New York, as trustee, which we will refer to as the subordinated
indenture. Whenever it is used in this Prospectus, the term "trustee" shall mean
either Wells Fargo Bank Minnesota, National Association or The Bank of New York,
as appropriate, for senior debt securities or subordinated debt securities. In
addition, we will refer to the senior indenture and the subordinated indenture
individually as an "indenture" and collectively as the "indentures."
We have summarized selected provisions of the indentures below. However,
because these summaries are not complete, they are subject to and are qualified
in their entirety by reference to the indentures, copies of which we have
incorporated by reference as exhibits to the Registration Statement of which
this Prospectus is a part. Capitalized terms used below have the meanings
specified in the applicable indenture. Unless otherwise noted, section
references below are to both indentures.
GENERAL
The debt securities will be our unsecured obligations. The indebtedness
represented by the senior debt securities will rank on a parity with our other
unsecured and unsubordinated indebtedness. The indebtedness represented by the
subordinated debt securities will be subordinated in right of payment to the
prior payment in full of our senior indebtedness as described under
"Subordination" below. We may issue the debt securities in one or more series.
We will describe in a supplement to this Prospectus the particular terms of any
debt securities being offered, any modifications of or additions to the general
terms of the debt securities and any applicable Federal income tax
considerations that may be applicable in the case of offered debt securities.
Accordingly, you should read both the Prospectus Supplement relating to the
particular debt securities being offered and the general description of debt
securities set forth in this Prospectus before investing.
We primarily conduct our operations through our subsidiaries. Our rights and
the rights of our creditors, including the holders of the debt securities, to
participate in the distribution of assets of any of our subsidiaries upon the
liquidation or reorganization of that subsidiary or otherwise will be subject
4
to the prior claims of the subsidiary's creditors, except to the extent that we
may be a creditor with recognized claims against the subsidiary. As a result,
the debt securities will be effectively subordinated to existing and future
liabilities of our subsidiaries.
The applicable Prospectus Supplement will describe specific terms relating
to the series of debt securities being offered. These terms will include some or
all of the following:
- the title and ranking of the series of debt securities;
- the aggregate principal amount and authorized denominations (if other than
$1,000 and integral multiples of $1,000);
- the initial public offering price;
- the original issue and stated maturity date or dates;
- the interest rate or rates (which may be fixed or floating), if any, the
method by which the rate or rates will be determined and the interest
payment and regular record dates;
- the manner and place of payment of principal and interest, if any;
- if other than U.S. dollars, the currency or currencies in which payment of
the initial public offering price and/or principal and interest, if any,
may be made;
- whether (and if so, when and at what price) we may be obligated to
repurchase the debt securities;
- whether (and if so, when and at what price) the debt securities can be
redeemed by us or the holder;
- under what circumstances, if any, we will pay additional amounts on the
debt securities to non-U.S. holders in respect of taxes;
- whether the debt securities will be issued in registered or bearer form
(with or without coupons) and, if issued in the form of one or more global
securities, the depositary for such securities;
- where the debt securities can be exchanged or transferred;
- whether the debt securities may be issued as original issue discount
securities, and if so, the amount of discount and the portion of the
principal amount payable upon declaration of acceleration of the maturity
thereof;
- whether (and if so, when and at what rate) the debt securities will be
convertible into shares of our common stock;
- whether there will be a sinking fund;
- provisions, if any, for the defeasance of the debt securities;
- any addition to, or modification or deletion of, any events of default or
covenants contained in the indenture relating to the debt securities; and
- any other terms of the series. (Section 3.01)
We may issue the debt securities in one or more series, as authorized from
time to time by our Board of Directors, any committee of our Board or any duly
authorized officer. The indentures do not limit the aggregate principal amount
of debt securities that we may issue thereunder. (Section 3.01)
If we issue original issue discount securities, we will also describe in the
applicable Prospectus Supplement the Federal income tax consequences and other
special considerations applicable to those securities.
5
The indentures do not limit our ability to incur additional indebtedness,
nor do they afford holders of debt securities protection in the event of a
highly leveraged or similar transaction involving our company. However, the
senior indenture provides that neither we nor any of our subsidiaries may
subject certain of our property or assets to any mortgage or other encumbrance
unless the senior debt securities are secured equally and ratably with or prior
to that other secured indebtedness. See "Certain Covenants of Senior Debt
Securities" below. Reference is made to the applicable Prospectus Supplement for
information with respect to any additions to, or modifications or deletions of,
the events of default or covenants described below.
We are not required to issue all of the debt securities of a series at the
same time, and debt securities of the same series may vary as to interest rate,
maturity and other provisions. Unless otherwise provided, a series may be
reopened for issuance of additional debt securities of that series.
(Section 3.01)
DENOMINATIONS, EXCHANGE, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable Prospectus Supplement, the debt
securities of any series will be issued only as registered securities, in global
or certificated form and in denominations of $1,000 and any integral multiple
thereof, and will be payable only in U.S. dollars. (Section 3.02) For more
information regarding debt securities issued in global form, see "Book-Entry
Debt Securities" below. Unless otherwise indicated in the applicable Prospectus
Supplement, any debt securities we issue in bearer form will have coupons
attached. (Section 2.01)
Registered debt securities of any series will be exchangeable for other
registered debt securities of the same series in the same aggregate principal
amount and having the same stated maturity date and other terms and conditions.
If so provided in the applicable Prospectus Supplement, to the extent permitted
by law, debt securities of any series issued in bearer form which by their terms
are registrable as to principal and interest may be exchanged, at the option of
the holders, for registered debt securities of the same series in the same
aggregate principal amount and having the same stated maturity date and other
terms and conditions, upon surrender of those securities at the corporate trust
office of the applicable trustee or at any other office or agency designated by
us for the purpose of making any such exchanges. Except in certain limited
circumstances, debt securities issued in bearer form with coupons surrendered
for exchange must be surrendered with all unmatured coupons and any matured
coupons in default attached thereto. (Section 3.05)
The exchange of debt securities issued in bearer form for registered debt
securities will be subject to the provisions of U.S. income tax laws and
regulations applicable to the debt securities in effect at the time of the
exchange. (Section 3.05)
Unless otherwise specified in the applicable Prospectus Supplement, in no
event may registered debt securities, including registered debt securities
received upon exchange of debt securities issued in bearer form, be exchanged
for debt securities issued in bearer form. (Section 3.05)
Upon surrender for registration of transfer of any registered debt security
of any series at the office or agency maintained for that purpose, we will
execute, and the applicable trustee will authenticate and deliver, in the name
of the designated transferee, one or more new registered debt securities of the
same series in the same aggregate principal amount of authorized denominations
and having the same stated maturity date and other terms and conditions. We may
not impose any service charge, other than any required tax or other governmental
charge, on the transfer or exchange of debt securities. (Section 3.05)
We are not required (1) to register, transfer or exchange debt securities of
any series during the period from the opening of business 15 days before the day
a notice of redemption relating to debt securities of that series selected for
redemption is sent to the close of business on the day that notice is
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sent, or (2) to register, transfer or exchange any debt security so selected for
redemption, except for the unredeemed portion of any debt security being
redeemed in part. (Section 3.05)
CERTAIN COVENANTS OF SENIOR DEBT SECURITIES
The following covenants apply to the senior debt securities:
LIMITATION ON MORTGAGES AND LIENS. Neither we nor any of our subsidiaries
may create or assume, except in favor of us or one of our wholly owned
subsidiaries, any mortgage, pledge, lien or encumbrance upon any Principal
Facility (as defined below under "Certain Definitions"), any stock of any
subsidiary or indebtedness of any subsidiary to us or to any other subsidiary
without equally and ratably securing any senior debt securities then
outstanding. However, this limitation does not apply to certain permitted
encumbrances as described in the senior indenture, including:
- purchase money mortgages entered into within specified time limits, and
liens extending, renewing or refunding those purchase money mortgages;
- liens existing on acquired property;
- certain tax, materialmen's, mechanics' and judgment liens, liens arising
by operation of law and other similar liens;
- liens in connection with certain government contracts;
- certain mortgages, pledges, liens or encumbrances in favor of any state or
local government or governmental agency in connection with certain
tax-exempt financings;
- liens to secure the cost of construction or improvement of any property
entered into within specified time limits; and
- mortgages, pledges, liens and encumbrances not otherwise permitted if the
sum of the indebtedness secured by those mortgages, pledges, liens and
encumbrances, plus the aggregate sales price of property involved in sale
and lease back transactions referred to in the first bullet point under
"--Limitation Upon Sale and Leaseback Transactions" below, does not exceed
the greater of $50 million or 10% of our Consolidated Stockholders' Equity
(as defined below under "Certain Definitions"). (Section 12.07 of the
senior indenture)
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. Neither we nor any of our
subsidiaries may sell any Principal Facility owned on the date of the senior
indenture with the intention of taking back a lease of that facility for a
period of more than 36 months, unless
- the aggregate sales price of property involved in sale and leaseback
transactions not otherwise permitted, plus all indebtedness secured by
mortgages, pledges, liens and encumbrances referred to in the last bullet
point above under "--Limitation Upon Mortgages and Liens" does not exceed
the greater of $50 million or 10% of our Consolidated Stockholders'
Equity; or
- the net proceeds of the sale or the fair market value of the Principal
Facility, whichever is greater (which may be conclusively determined by
our Board of Directors), are applied within 120 days to the optional
retirement of senior debt securities then outstanding or to the optional
retirement of our other Funded Debt (as defined below under "Certain
Definitions") ranking on a parity with the senior debt securities.
(Section 12.08 of the senior indenture)
In addition, unless otherwise specified in the applicable Prospectus
Supplement, the senior debt securities of each series will contain the following
covenant:
LIMITATION ON INDEBTEDNESS OF RESTRICTED SUBSIDIARIES. Our Restricted
Subsidiaries (as defined below under "Certain Definitions") may not create,
incur, assume or guarantee any Indebtedness (as defined
7
below under "Certain Definitions") unless immediately thereafter the aggregate
amount of all Indebtedness of Restricted Subsidiaries (excluding Indebtedness
owed to us or another Restricted Subsidiary, including any renewal or
replacement of that Indebtedness), plus the discounted present value of all net
rentals payable under leases referred to above under "--Limitation Upon Sale and
Leaseback Transactions" would not exceed 15% of Consolidated Stockholders'
Equity. For purposes of this covenant, (1) Indebtedness does not include
indebtedness incurred in connection with overdraft or similar facilities related
to settlement, clearing and related activities by a Restricted Subsidiary in the
ordinary course of business consistent with past practice if the indebtedness
does not remain outstanding for more than 72 hours and (2) indebtedness of a
person existing at the time the person became a Restricted Subsidiary or was
merged with or into our company, a Restricted Subsidiary or other entity, or
assumed by us or our subsidiary in connection with the acquisition of all or a
portion of the business of that person, will not be deemed to be Indebtedness of
a Restricted Subsidiary or Indebtedness created, incurred, assumed or guaranteed
by a Restricted Subsidiary.
EVENTS OF DEFAULT
"Event of Default" means, with respect to any series of debt securities, any
of the following events:
- failure to pay interest on the debt securities of that series, which
failure continues for a period of 30 days after payment is due;
- failure to make any principal or premium payment on the debt securities of
that series when due;
- failure to make any sinking fund payment when and as due by the terms of
the debt security of that series;
- failure to perform or comply with any other covenant or warranty in the
applicable indenture with respect to the debt securities of that series
for a period of 60 days after notice to us of such failure by (1) the
applicable trustee or (2) the holders of at least 25% in principal amount
of the outstanding debt securities of that series;
- in the case of the senior indenture, default under any of Indebtedness
pursuant to which we or our subsidiaries have borrowed or guaranteed an
aggregate principal amount of $10 million or more and which default
(1) constitutes a failure to make any principal or interest payment when
due after giving effect to any applicable grace period or (2) accelerates
the payment of such debt and such acceleration is not rescinded or
annulled, or such debt is not discharged, within 15 days after notice to
us of such default by (1) the applicable trustee or (2) the holders of at
least 25% in principal amount of the outstanding senior debt securities of
that series;
- in the case of the subordinated indenture, default under any of
Indebtedness pursuant to which we or our subsidiaries have borrowed or
guaranteed an aggregate principal amount of $10 million or more and which
default (1) constitutes a failure to make any principal or interest
payment when due after giving effect to any applicable grace period or
(2) accelerates the payment of such debt and such acceleration is not
rescinded or annulled, or such debt is not discharged, within 15 days
after notice to us of such default by (1) the applicable trustee or
(2) the holders of at least 25% in principal amount of the outstanding
subordinated debt securities of that series;
- in the case of the senior indenture, the entry against us or our
subsidiaries of one or more final judgments, decrees or orders by a court
for the payment of money aggregating in excess of $10 million, which
judgment, decree or order is not paid, discharged or stayed for any period
of 45 consecutive days after the amount thereof is due;
- certain events of bankruptcy, insolvency or reorganization of our company;
and
8
- any other event of default provided with respect to debt securities of
that series pursuant to the applicable indenture. (Section 5.01)
In general, the applicable trustee is required to give notice of a default
with respect to a series of debt securities to the holders of that series.
However, the applicable trustee may withhold notice of any default (except a
default in payment of principal or interest on the debt securities) if the
trustee determines it is in the interest of the holders of that series of debt
securities to do so. (Section 6.02)
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for other series of debt securities.
If there is a continuing event of default, then the applicable trustee or
the holders of at least 25% in principal amount of the series of debt securities
affected by the event of default may require us to repay the principal amount
(or, if the debt securities of that series are original issue discount
securities, the portion of the principal amount as may be specified in the terms
of those debt securities) on the affected series immediately. Upon payment of
the principal or other specified amount in the currency in which the debt
securities of that series are denominated (except as otherwise provided in the
applicable indenture or Prospectus Supplement), our obligations in respect of
the payment of principal of the debt securities of that series will terminate.
(Section 5.02)
Subject to the provisions of each indenture relating to the duties of the
applicable trustee, in the case of a continuing event of default, the applicable
trustee may refuse to exercise any of its rights or powers under such indenture
at the request, order or direction of any of the holders of debt securities of
the affected series unless it first receives reasonable indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request. (Section 6.03) Subject to this limitation, the holders of a
majority in principal amount of the outstanding debt securities of the affected
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the applicable trustee under the
applicable indenture or exercising any trust or power conferred on the
applicable trustee with respect to the debt securities of that series.
(Section 5.12)
At any time before a judgment or decree for payment of money due has been
obtained by the applicable trustee as provided in the applicable indenture
following a declaration of acceleration with respect to debt securities of any
series, the holders of a majority in principal amount of the outstanding debt
securities of that series may rescind and annul such declaration and its
consequences if:
- we have paid or deposited with the applicable trustee a sum in the
currency in which debt securities of that series are denominated (except
as otherwise provided in the applicable indenture or Prospectus
Supplement) sufficient to pay (1) all overdue installments of interest or
other payments with respect to coupons on all debt securities of that
series, (2) the principal of, premium, if any, and interest on any debt
securities of that series which have become due otherwise than by such
declaration of acceleration, (3) to the extent that such payment is
lawful, interest on overdue installments of interest or other payments
with respect to coupons on each debt security of that series at a rate
established for such series, and (4) all sums paid or advanced by the
applicable trustee and the reasonable compensation, expenses,
disbursements and advances of the applicable trustee, its agents and
counsel; and
- all events of default with respect to debt securities of that series,
other than the nonpayment of principal which has become due solely by such
declaration of acceleration, have been cured or waived as provided in the
applicable indenture.
No such rescission and waiver will affect any subsequent default or impair
any right consequent thereon. (Section 5.02)
9
We are required to provide the applicable trustee with an officers'
certificate each fiscal year stating whether or not we have complied with all
conditions and covenants under the applicable indenture. (Section 12.02)
MERGER OR CONSOLIDATION
We may not consolidate with or merge into any other corporation or convey,
transfer or lease our properties and assets substantially as an entirety to any
person, unless:
- the surviving or successor corporation is a domestic corporation and
expressly assumes, by supplemental indenture, all of our obligations under
the indentures;
- immediately after completion of the transaction, no event of default, and
no event which, after notice or lapse of time, or both, would become an
event of default, has occurred and is continuing;
- in the case of the senior indenture, if, as a result of the transaction,
our properties or assets would become subject to a mortgage, pledge, lien,
security interest or other encumbrance covered by the provisions described
above under "Certain Covenants of Senior Debt Securities--Limitation on
Mortgages and Liens," we or the surviving or successor corporation takes
such steps as are necessary to effectively secure all senior debt
securities equally and ratably with (or prior to) all indebtedness secured
by such mortgage, pledge, lien, security interest or other encumbrance;
and
- we deliver to the applicable trustee an officers' certificate and an
opinion of counsel each stating that the transaction and the supplemental
indenture comply with the applicable indenture provisions and that all
conditions precedent in the applicable indenture relating to such
transaction have been complied with. (Section 10.01)
MODIFICATION OR WAIVER
We and the applicable trustee may, at any time and from time to time, amend
the applicable indenture without the consent of the holders of outstanding debt
securities for any of the following purposes:
- to effect the assumption of our obligations under the applicable indenture
by a successor corporation;
- to impose additional covenants and events of default for the benefit of
the holders of all or any series of debt securities (and if such covenants
or events of default are to be for the benefit of less than all series,
stating that such covenants and events of default are expressly being
included solely for the benefit of such series);
- to add or change any of the provisions of the applicable indenture
relating to the issuance or exchange of debt securities in registered or
bearer form, but only if such action does not adversely affect the
interests of the holders of outstanding debt securities of any series or
related coupons in any material respect;
- to change or eliminate any of the provisions of the applicable indenture,
but only if the change or elimination becomes effective when there is no
outstanding debt security of any series or related coupon which is
entitled to the benefit of such provision and as to which such
modification would apply;
- to secure the debt securities;
- to supplement any of the provisions of the applicable indenture to permit
or facilitate the defeasance and discharge of any series of debt
securities, but only if such action does not
10
adversely affect the interests of the holders of outstanding debt
securities of any series or related coupons in any material respect;
- to establish the form or terms of debt securities and coupons, if any, of
any series as permitted by the applicable indenture;
- to evidence and provide for the acceptance of appointment by a successor
trustee and to add to or change any of the provisions of the applicable
indenture to facilitate the administration of the trusts by more than one
trustee; and
- to correct any mistakes or defects in the applicable indenture, but only
if such action does not adversely affect the interests of the holders of
outstanding debt securities of any series or related coupons in any
material respect. (Section 11.01)
In addition, we and the applicable trustee may modify the applicable
indenture with the consent of the holders of not less than a majority in
principal amount of each series of outstanding debt securities affected by such
modification (voting as separate classes) to add, change or eliminate any
provision of, or to modify the rights of holders of debt securities under, the
applicable indenture. But we may not take any of the following actions without
the consent of each holder of outstanding debt securities affected thereby:
- change the stated maturity of the principal of, or any installment of
interest on, any debt security or related coupon, reduce the principal
amount thereof, the interest thereon or any premium payable upon
redemption thereof, change the currency or currencies in which the
principal, premium or interest is denominated or payable, reduce the
amount of principal payable upon acceleration of maturity of an original
issue discount security or reduce the amount of, or postpone the date
fixed for, any sinking fund payment;
- adversely affect the right of a holder to require us to repay or
repurchase any debt security or to convert any debt security into shares
of our common stock, reduce the amount of, or impair the right to
institute suit for the enforcement of, any payment on any debt security
following maturity thereof, or limit our obligation to maintain a paying
agency outside the United States for payments on debt securities issued in
bearer form;
- reduce the percentage in principal amount of outstanding debt securities
of any series required for consent to any supplemental indenture or to any
waiver of defaults or compliance with certain provisions of the applicable
indenture;
- modify any provision of the applicable indenture relating to modifications
and waivers of defaults and covenants, except to increase any such
percentage or to provide that certain other provisions cannot be modified
or waived without the consent of each holder of outstanding debt
securities affected thereby; or
- in the case of the subordinated indenture, modify any of the provisions
relating to the subordination of the subordinated debt securities in a
manner adverse to the holders thereof. (Section 11.02)
In addition, we may not make any modifications under the subordination
provisions of the subordinated indenture that would adversely affect the rights
of any holder of Senior Indebtedness (as defined below under "Certain
Definitions") without the consent of that holder. (Section 11.08 of the
subordinated indenture)
A modification with respect to one or more particular series of debt
securities and related coupons, if any, will not affect the rights under the
applicable indenture of the holders of debt securities of any other series and
related coupons, if any. (Section 11.02)
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The holders of a majority in principal amount of the outstanding debt
securities of any series may, on behalf of the holders of all debt securities of
that series, waive any past default under the applicable indenture with respect
to that series, except a default (1) in the payment of principal of, premium, if
any, or interest on, or any sinking fund installment or similar obligation with
respect to, any debt security or (2) in respect of a covenant or provision
which, as described above, cannot be modified or amended without the consent of
each holder of outstanding debt securities of the affected series. Upon any such
waiver, the default will cease to exist and any event of default arising
therefrom will be deemed to have been cured for every purpose of the debt
securities of that series under the applicable indenture, but the waiver will
not extend to any subsequent or other default or impair any right consequent
thereon. (Section 5.13)
We may omit in any particular instance to comply with certain covenants set
forth in the indentures or the debt securities of any series (except as
otherwise provided in the applicable Prospectus Supplement and, in the case of
the senior indenture, the covenants described above under "Certain Covenants of
the Senior Debt Securities") if, before the time for such compliance, the
holders of at least a majority in principal amount of the outstanding debt
securities of that series either waive compliance in that instance or generally
waive compliance with those provisions, but the waiver may not extend to or
affect any term, provision or condition except to the extent expressly so
waived, and, until the waiver becomes effective, our obligations and the duties
of the applicable trustee in respect of any such provision will remain in full
force and effect. (Section 12.09)
SUBORDINATION
The subordinated debt securities will be subordinated in right of payment to
all of our Senior Indebtedness to the extent provided in the subordinated
indenture. This means that in the event of dissolution, winding up, liquidation
or reorganization of our company, we must first pay in full all of our
outstanding Senior Indebtedness, including senior debt securities, before we
make any payment in respect of principal of, premium, if any, and interest on
the subordinated debt securities, but our obligation to make such payment on the
subordinated debt securities will not otherwise be affected. (Sections 16.01 and
16.02 of the subordinated indenture) In addition, at any time when there is a
default in the payment of any principal, premium, if any, sinking fund or
interest on any Senior Indebtedness when due, we may not make any payment on
account of principal, premium, if any, sinking fund or interest on the
subordinated debt securities. (Section 16.03 of the subordinated indenture) If,
notwithstanding this restriction, the applicable trustee under the subordinated
indenture or the holders of any subordinated debt securities receive from us any
payment described in the preceding sentence before all of our Senior
Indebtedness is paid in full, that payment or distribution must be paid over to
the holders of Senior Indebtedness, or on their behalf for application to the
payment of Senior Indebtedness, remaining unpaid until all such Senior
Indebtedness is paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness. Subject to payment in
full of Senior Indebtedness, holders of the subordinated debt securities will be
subrogated to the rights of the holders of the Senior Indebtedness to the extent
of payments made to the holders of such Senior Indebtedness out of the
distributive share of the subordinated debt securities. (Section 16.02 of the
subordinated indenture)
By reason of such subordination, in the event of a distribution of assets
upon insolvency, certain of our general creditors may recover more, ratably,
than holders of the subordinated debt securities. The subordinated indenture
provides that the subordination provisions do not apply to money and securities
held in trusts pursuant to the satisfaction and discharge and the legal
defeasance provisions of the subordinated indenture. (Sections 4.02 and 15.02 of
the subordinated indenture)
If this Prospectus is being delivered in connection with the offering of a
series of subordinated debt securities, we will set forth in the applicable
Prospectus Supplement the approximate amount of our Senior Indebtedness
outstanding as of a recent date.
12
DISCHARGE, LEGAL DEFEASANCE AND COVENANT DEFEASANCE
We may be discharged from all of our obligations with respect to the
outstanding debt securities of any series (except as otherwise provided in the
applicable indenture) when:
- either (1) all debt securities of that series and related coupons, if any,
have been delivered to the applicable trustee for cancellation, or
(2) all debt securities of that series and related coupons, if any, not
delivered to the applicable trustee for cancellation
- have become due and payable,
- will become due and payable at their stated maturity within one year,
or
- are to be called for redemption within one year under arrangements
satisfactory to the applicable trustee for the giving of notice by the
applicable trustee,
and we, in the case of clause (2), have irrevocably deposited or caused
to be deposited with the applicable trustee, in trust, an amount in the
currency in which the debt securities are denominated sufficient for
payment of all principal of, premium, if any, and interest on those debt
securities when due or to the date of deposit, as the case may be;
provided, however, in the event a petition for relief under any
applicable Federal or state bankruptcy, insolvency or other similar law
is filed with respect to our company within 91 days after the deposit and
the applicable trustee is required to return the deposited money to us,
our obligations under the applicable indenture with respect to those debt
securities will not be deemed terminated or discharged;
- we have paid or caused to be paid all other sums payable by us under the
applicable indenture;
- we have delivered to the applicable trustee an officers' certificate and
an opinion of counsel each stating that all conditions precedent relating
to the satisfaction and discharge of the applicable indenture with respect
to that series of debt securities have been complied with; and
- we have delivered to the applicable trustee an opinion of counsel or a
ruling of the Internal Revenue Service to the effect that holders of debt
securities of that series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and discharge.
(Section 4.01)
If so provided, and except as otherwise specified in the applicable
Prospectus Supplement, the provisions of each indenture relating to defeasance
will apply to registered debt securities of any series which are denominated and
payable only in U.S. dollars. Defeasance provisions, if any, for debt securities
denominated in a foreign currency or currencies or issued in bearer form may be
specified in the applicable Prospectus Supplement. (Section 15.01)
We may elect (1) to be discharged from our obligations with respect to the
outstanding debt securities of any series (except as otherwise specified in the
applicable indenture) or (2) to be released from our obligation to comply with
the provisions of the indentures described above under "Merger or Consolidation"
and, in the case of the senior indenture, the provisions described above under
"Certain Covenants of Senior Debt Securities" with respect to the outstanding
debt securities of any series (and, if so specified, any other obligation or
restrictive covenant added for the benefit of that series), in either case, if
we satisfy each of the following conditions:
- we deposit or cause to be deposited irrevocably with the applicable
trustee, in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of debt securities of that series
money or the equivalent in securities of the government which issued the
currency in which the debt securities are denominated, or any combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
delivered to the applicable trustee, for payment of all principal of,
premium, if any, and interest on the outstanding debt securities of that
series when due;
13
- such deposit does not cause the applicable trustee with respect to the
debt securities of that series to have a conflicting interest with respect
to the debt securities of any other series;
- such deposit will not result in a breach or violation of, or constitute a
default under, the applicable indenture or any other agreement or
instrument to which we are a party or by which we are bound;
- if the debt securities of that series are then listed on any national
securities exchange, we deliver to the applicable trustee an opinion of
counsel or a letter or other document from such exchange to the effect
that our exercise of either of the defeasance options described above, as
the case may be, would not cause those debt securities to be delisted;
- on the date of such deposit, there is no continuing event of default or
event (including such deposit) which, with notice or lapse of time or
both, would become an event of default with respect to the debt securities
of that series and, with respect to the option under clause (1) above
only, no event of default under the provisions of the indentures relating
to certain events of bankruptcy or insolvency or event which, with notice
or lapse of time or both, would become an event of default under such
bankruptcy or insolvency provisions shall have occurred and be continuing
on the 91st day after such date; and
- we deliver to the applicable trustee an opinion of counsel or a ruling of
the Internal Revenue Service to the effect that the holders of debt
securities of that series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance or
discharge.
Notwithstanding the foregoing, if we exercise our option under clause (2)
above and an event of default under the provisions of the indentures relating to
certain events of bankruptcy or insolvency or event which, with notice or lapse
of time or both, would become an event of default under such bankruptcy or
insolvency provisions shall have occurred and be continuing on the 91st day
after the date of such deposit, our obligation to comply with the provisions of
the indentures described above under "Merger or Consolidation" and, in the case
of the senior indenture, the provisions described above under "Certain Covenants
of Senior Debt Securities" with respect to those debt securities will be
reinstated. (Section 15.02)
PAYMENT AND PAYING AGENTS
If we issue a series of debt securities only in registered form, we will
maintain in each place of payment for those debt securities an office or agency
where the debt securities may be presented or surrendered for payment or for
registration of transfer or exchange and where holders may serve us with notices
and demands in respect of the debt securities and the applicable indenture. If
debt securities of a series may be issued in bearer form, we will maintain the
following offices or agencies:
- in the Borough of Manhattan, the City and State of New York (or, in the
case of the senior indenture, in Minneapolis, Minnesota), where any
registered debt securities of that series may be presented or surrendered
for payment or for registration of transfer or exchange, where holders may
serve us with notices and demands in respect of the debt securities and
the applicable indenture and where debt securities of that series issued
in bearer form and related coupons may be presented or surrendered for
payment in the circumstances described in the next paragraph (and not
otherwise);
- subject to any applicable laws or regulations, in a place of payment for
that series of debt securities which is located outside the United States,
where the debt securities and related coupons may be presented and
surrendered for payment (including payment of any additional amounts on
the debt securities, if so provided); PROVIDED, HOWEVER, that if the debt
securities are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange so
requires, we will maintain a paying agent for the debt securities in
14
London, Luxembourg or any other required city located outside the United
States, as the case may be, so long as the debt securities are listed on
such exchange, and
- subject to any laws or regulations applicable thereto, in a place of
payment for that series of debt securities located outside the United
States, where any registered debt securities of that series may be
surrendered for registration of transfer or exchange and where holders may
serve us with notices and demands in respect of the debt securities and
the applicable indenture.
We will give prompt written notice to the applicable trustee of the location,
and any change in the location, of such office or agency. If we fail to maintain
any required office or agency or fail to furnish the applicable trustee with the
address of such office or agency, presentations, surrenders, notices and demands
may be made or served at the corporate trust office of the applicable trustee
(in the case of registered debt securities) and at the principal London office
of the applicable trustee (in the case of debt securities in bearer form). We
have appointed the applicable trustee as our agent to receive all presentations,
surrenders, notices and demands. (Section 12.03)
We may not make any payment of principal of or premium or interest on debt
securities issued in bearer form at any office or agency in the United States,
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States. However, if so provided in
the applicable Prospectus Supplement, we may make payment of principal of and
any premium and interest on debt securities of a series which are denominated
and payable in U.S. dollars at the office of our paying agent in the Borough of
Manhattan, the City and State of New York, or, in the case of the senior
indenture, in Minneapolis, Minnesota, but only if payment in U.S. dollars of the
full amount of such principal, premium, interest or additional amounts, as the
case may be, at all offices or agencies outside the United States maintained by
us in accordance with the applicable indenture is illegal or effectively
precluded by exchange controls or other similar restrictions. (Section 12.03)
BOOK-ENTRY DEBT SECURITIES
We may issue the debt securities of a series in whole or in part in global
form that we will deposit with, or on behalf of, a depositary identified in the
applicable Prospectus Supplement. Global securities may be issued in either
registered or bearer form and in either temporary or permanent form. We will
make payments of principal of, and premium, if any, and interest on debt
securities represented by a global security to the applicable trustee and then
by the trustee to the depositary.
We anticipate that any global securities will be deposited with, or on
behalf of, The Depository Trust Company, New York, New York and will be
registered in the name of DTC's nominee, and that the following provisions will
apply to the depositary arrangements with respect to any global securities. We
will describe additional or differing terms of the depositary arrangements in
the Prospectus Supplement relating to a particular series of debt securities
issued in the form of global securities.
So long as DTC or its nominee is the registered owner of a global security,
DTC or its nominee, as the case may be, will be considered the sole holder of
the debt securities represented by the global security for all purposes under
the applicable indenture. Except as provided below, owners of beneficial
interests in a global security will not be entitled to have debt securities
represented by a global security registered in their names, will not receive or
be entitled to receive physical delivery of debt securities in certificated form
and will not be considered the owners or holders thereof under the applicable
indenture. The laws of some states require that certain purchasers of securities
take physical delivery of those securities in certificated form; accordingly,
these laws may limit the transferability of beneficial interests in a global
security.
If DTC is at any time unwilling or unable to continue as depositary, or
ceases to be a clearing agency registered under the Exchange Act, and we do not
appoint a successor depositary within 90 days, we will issue individual debt
securities in certificated form in exchange for the global securities. In
addition, we may at any time, in our sole discretion, determine not to have any
debt securities
15
represented by one or more global securities. If we so determine, we will issue
individual debt securities in certificated form in exchange for the relevant
global securities. If registered debt securities of any series are issued in the
form of one or more global securities and if an event of default with respect to
that series of debt securities occurs and is continuing, we will issue
individual debt securities in certificated form in exchange for the relevant
global securities.
The following is based on information furnished by DTC:
DTC will act as securities depositary for debt securities represented by one
or more global securities. The debt securities will be issued as
fully-registered debt securities registered in the name of Cede & Co. (DTC's
partnership nominee) or another name as may be requested by an authorized
representative of DTC. One fully-registered global security will be issued for
each issue of debt securities, in the aggregate principal amount of the issue,
and will be deposited with DTC. If, however, the aggregate principal amount of
any issue exceeds the maximum principal amount permitted by DTC, one global
security will be issued with respect to the maximum principal amount and an
additional global security will be issued with respect to any remaining
principal amount of that issue.
DTC is a limited-purpose trust company organized under the New York Banking
Law; a "banking organization" within the meaning of the New York Banking Law; a
member of the Federal Reserve System; a "clearing corporation" within the
meaning of the New York Uniform Commercial Code; and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations.
DTC is owned by a number of its direct participants and by the New York
Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to DTC's system is also available
to others such as securities brokers and dealers, banks and trust companies that
clear through or maintain a custodial relationship with a direct participant,
either directly or indirectly. The rules applicable to DTC and its participants
are on file with the SEC.
Purchases of debt securities represented by one or more global securities
under DTC's system must be made by or through direct participants, which will
receive a credit for the global securities on DTC's records. The ownership
interest of each beneficial owner of each global security is in turn recorded on
the direct and indirect participants' records. A beneficial owner will not
receive written confirmation from DTC of its purchase, but is expected to
receive a written confirmation providing details of such transaction, as well as
periodic statements of its holdings, from the direct or indirect participant
through which the beneficial owner entered into the transaction. Transfers of
ownership interests in global securities will be accomplished by entries made on
the books of participants acting on behalf of the beneficial owners. Beneficial
owners will not receive certificates representing their ownership interests in
global securities, except in the event that use of the book-entry system for one
or more global securities is discontinued.
To facilitate subsequent transfers, all global securities deposited by
participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. or another name as may be requested by an authorized representative
of DTC. The deposit of global securities with DTC and their registration in the
name of Cede & Co. (or such other name) effect no change in beneficial
ownership. DTC has no knowledge of the actual beneficial owners of the debt
securities; DTC records reflect only the identity of the direct participants to
whose accounts global securities are credited, which may or may not be the
beneficial owners. The participants remain responsible for keeping account of
their holdings on behalf of their customers.
16
Delivery of notices and other communications by DTC to direct participants,
by direct participants to indirect participants, and by direct participants and
indirect participants to beneficial owners are governed by arrangements among
them, subject to any statutory or regulatory requirements as may be in effect
from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to the global
securities. Under its usual procedures, DTC will mail an Omnibus Proxy to the
issuer as soon as possible after the record date. The Omnibus Proxy assigns
Cede & Co.'s consenting or voting rights to those direct participants to whose
accounts the debt securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Principal, premium, if any, and interest payments on the global securities
will be made to Cede & Co., or another nominee as may be requested by an
authorized representative of DTC. DTC's practice is to credit direct
participants' accounts, upon DTC's receipt of funds and corresponding detail
information from us or the paying agent, on the relevant payment date in
accordance with the direct participants' respective holdings shown on DTC's
records.
Payments by participants to beneficial owners are governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of the participant and not of DTC, the paying agent
or us, subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of principal, premium, if any, and interest to
Cede & Co., or another nominee as may be requested by an authorized
representative of DTC, is our responsibility or the responsibility of the paying
agent, disbursement of those payments to direct participants is the
responsibility of DTC, and disbursement of those payments to the beneficial
owners is the responsibility of direct and indirect participants.
A beneficial owner must give notice to elect to have its global securities
purchased or tendered, through its participant, to the paying agent, and must
effect delivery of the global securities by causing the direct participant to
transfer the participant's interest in the global securities, on DTC's records,
to the paying agent. The requirement for physical delivery of global securities
in connection with a demand for purchase or a mandatory purchase will be deemed
satisfied when the ownership rights in the global securities are transferred by
direct participants on DTC's records.
DTC may discontinue providing its services as securities depositary with
respect to the debt securities at any time by giving reasonable notice to us or
the agents. If we do not appoint a successor securities depositary within
90 days, certificates representing debt securities will be printed and delivered
in exchange for the debt securities represented by the global securities held by
DTC.
In addition, if we decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary), certificates
representing debt securities will be printed and delivered in exchange for the
debt securities represented by the global securities held by DTC.
We have obtained the information in this section concerning DTC and DTC's
book-entry system from sources that we believe to be reliable, but we take no
responsibility for the accuracy thereof.
Neither we nor any underwriter or agent, applicable trustee, paying agent or
registrar of any debt securities will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in a global security, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
CONVERSION RIGHTS
We will describe in the applicable Prospectus Supplement the particular
terms and conditions, if any, on which debt securities may be convertible into
shares of our common stock. These terms will include the conversion price, the
conversion period, provisions as to whether conversion will be at our option or
the option of the holder, events requiring an adjustment of the conversion price
and provisions affecting conversion in the event of the redemption of the debt
securities.
17
THE TRUSTEES UNDER THE INDENTURES
We maintain ordinary banking relationships and, from time to time, obtain
credit facilities and lines of credit with a number of banks, including the
trustees, Wells Fargo Bank Minnesota, National Association and The Bank of New
York.
CERTAIN DEFINITIONS
We have summarized below certain defined terms as used in the applicable
indenture. We refer you to the applicable indenture for the full definition of
these terms.
"Consolidated Stockholders' Equity," at any time, means the total
stockholders' equity of our company and our consolidated subsidiaries,
determined on a consolidated basis in accordance with generally accepted
accounting principles, as of the end of our most recently completed fiscal
quarter for which financial information is then available. (Section 1.01 of the
senior indenture)
"Funded Debt" means any indebtedness for money borrowed, created, issued,
incurred, assumed or guaranteed which would, in accordance with generally
accepted accounting practice, be classified as long-term debt, but in any event
including all indebtedness for money borrowed, whether secured or unsecured,
maturing more than one year or extendible at the option of the obligor to a date
more than one year, after the date of determination thereof (excluding any
amount thereof included in current liabilities). (Section 1.01 of the senior
indenture)
"Indebtedness" means:
- any liability of any person (1) for borrowed money, (2) evidenced by a
bond, note, debenture or similar instrument (including purchase money
obligations, but excluding trade payables), (3) for the payment of money
relating to a lease that is required to be classified as a capitalized
lease obligation in accordance with generally accepted accounting
principles, or [(4) preferred or preference stock of our subsidiary held
by persons other than us or any of our other subsidiaries];
- any liability of others described in the preceding bullet point that the
person has guaranteed, that is recourse to such person or that is
otherwise its legal liability; and
- any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to the first two bullet
points above, except that "Indebtedness" does not include any liabilities
of the kind included opposite the caption "Liabilities relating to TRS
financial instruments sold" on our audited consolidated balance sheet.
(Section 1.01) [These liabilities are currently included opposite the
caption "Settlement Obligations" on our consolidated balance sheet.]
"Principal Facility" means the real property, fixtures, machinery and
equipment relating to any facility owned by us or any of our subsidiaries,
except any facility that, in the opinion of our board of directors, is not of
material importance to the our business. (Section 1.01 of the senior indenture)
"Restricted Subsidiary," at any time, means any of our subsidiaries which
has revenues, determined on a consolidated basis (with its subsidiaries) in
accordance with generally accepted accounting principles, equal to or exceeding
10% of our consolidated revenues for our most recently completed fiscal year for
which financial information is then available.
"Senior Indebtedness" means the principal of and premium, if any, and unpaid
interest on our Indebtedness for money borrowed (other than the subordinated
debt securities), whether outstanding on the date of the subordinated indenture
or thereafter created, incurred, assumed or guaranteed, unless the instrument
creating or evidencing the Indebtedness provides that such Indebtedness is not
senior or prior in right of payment to the subordinated debt securities or is
PARI PASSU or subordinate by its terms in right of payment to the subordinated
debt securities, and renewals, extensions and modifications of any such
Indebtedness.
18
DESCRIPTION OF CAPITAL STOCK
As of the date of this Prospectus, our authorized capital stock consists of
600,000,000 shares of common stock and 10,000,000 shares of preferred stock. As
of January 31, 2001, approximately 395,423,200 shares of common stock were
issued and outstanding. No shares of preferred stock are currently outstanding.
The following summary description of our capital stock does not purport to be
complete and is qualified in its entirety by reference to our Amended and
Restated Certificate of Incorporation, including the certificate of designation
relating to the particular class or series of preferred stock being offered, and
to Delaware corporate law. See "Where You Can Find More Information."
COMMON STOCK
Each holder of common stock is entitled to one vote for each share held on
all matters submitted to a vote of the stockholders. Holders of common stock do
not have cumulative voting rights. Accordingly, holders of a majority of the
shares of common stock entitled to vote in any election of directors may elect
all of the directors standing for election. Holders of common stock are entitled
to receive ratably dividends, if any, as may be declared by our board of
directors out of funds legally available therefor, subject to any preferential
dividend rights of outstanding preferred stock and certain dividend limitations
contained in our outstanding senior promissory notes. Upon the liquidation,
dissolution or winding up of our company, holders of common stock are entitled
to receive ratably our net assets remaining after payment of all debts and other
liabilities, subject to the prior rights of any outstanding preferred stock.
Holders of common stock have no preemptive, subscription, redemption or
conversion rights. All outstanding shares of common stock are duly authorized,
validly issued, fully paid and nonassessable. The rights, preferences and
privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of preferred
stock which we may designate and issue in the future.
PREFERRED STOCK
Under our Amended and Restated Certificate of Incorporation, we may issue,
in one or more classes or series, up to 10,000,000 shares of preferred stock.
The powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions of any such class or
series of preferred stock will be designated in resolutions adopted by our board
of directors or one of its committees. Holders of preferred stock will have no
preemptive rights. All shares of preferred stock, when issued, will be fully
paid and nonassessable.
We will describe in a supplement to this Prospectus the particular terms of
each class or series of preferred stock being offered, including:
- the designation of the preferred stock;
- the number of shares being offered and the initial offering price;
- the per share liquidation preference;
- the dividend rate or rates (or method of calculation thereof) and the
dividend periods and/or payment dates;
- the date from which dividends will accumulate, if applicable;
- the procedures for any auction and remarketing of the preferred stock;
- the provision of a sinking fund, if any;
- whether the preferred stock will be redeemable (and if so, when and at
what price), at our option or the option of the holder;
19
- the securities exchange, if any, on which the preferred stock will be
listed;
- whether the preferred stock will be convertible into or exchangeable for
common stock (and if so, when and at what price) at our option or at the
option of the holder;
- whether the preferred stock will rank senior or junior to or on a parity
with any other class or series of preferred stock;
- the voting rights, if any, and any other specific terms, preferences,
rights, limitations or restrictions of the preferred stock; and
- a discussion of U.S. federal income tax considerations applicable to the
preferred stock.
Subject to our Amended and Restated Certificate of Incorporation and to any
limitations contained in any then outstanding class or series of preferred
stock, we may issue additional classes or series of preferred stock, at various
times, with powers, preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions thereof, as our
board of directors or one of its committees determines, all without further
action of the stockholders, including holders of then outstanding preferred
stock.
CERTAIN PROVISIONS OF OUR AMENDED AND RESTATED CERTIFICATE OF INCORPORATION AND
BY-LAWS
Certain provisions of our Amended and Restated Certificate of Incorporation
and By-laws summarized below may be deemed to have an anti-takeover effect and
may delay, defer or prevent a tender offer or takeover attempt that a
stockholder might consider in its best interest, including those attempts that
might result in a premium over the market price for the shares held by
stockholders.
Our Amended and Restated Certificate of Incorporation or By-laws provide
that:
- we will have three classes of directors serving staggered terms;
- directors can be removed from office only for cause and only by the
affirmative vote of the holders of a majority of the then outstanding
shares of common stock entitled to vote generally in an election of
directors;
- vacancies on our board of directors may be filled only by the remaining
directors and not by the stockholders; and
- our board of directors may adopt, amend or repeal our By-laws.
In addition, our By-laws specify an advance notice procedure for the
nomination by stockholders of candidates for election as directors and other
stockholder proposals to be considered at annual meetings of stockholders. In
general, we must receive notice from a stockholder of his or her intent to
nominate a director or raise business at an annual meeting not less than 60 nor
more than 90 days prior to the anniversary of the previous year's annual
meeting. The notice must contain certain information concerning the person to be
nominated or the matters to be brought before the meeting and the stockholder
submitting the proposal.
Our Amended and Restated Certificate of Incorporation also provides that any
action required or permitted to be taken by stockholders may be effected only at
an annual or special meeting of stockholders. Stockholder action by written
consent in lieu of a meeting is prohibited. The affirmative vote of the holders
of more than 80% of the voting power of our capital stock entitled to vote is
required to alter, amend or repeal, or adopt any provision inconsistent with,
this provision. In addition, special meetings of stockholders may be called only
by the chairman of the board, chairman of the executive committee, our president
or secretary or any officer at the request in writing of our board of directors.
20
STATUTORY PROVISIONS
We have elected, pursuant to a provision of our Amended and Restated
Certificate of Incorporation, not to be governed by Section 203 of the Delaware
General Corporation Law. Section 203 prohibits certain transactions between a
Delaware corporation and an "interested stockholder," which is defined as a
person who, together with that person's affiliates and/or associates,
beneficially owns, directly or indirectly, 15% or more of the outstanding voting
shares of a Delaware corporation. This provision prohibits certain business
combinations (including mergers, consolidations, sales or other dispositions of
assets having an aggregate value in excess of 10% of the consolidated assets of
the corporation and certain transactions that would increase the interested
stockholder's proportionate share ownership in the corporation) between an
interested stockholder and a corporation for a period of three years after the
date the interested stockholder acquired its stock, unless:
- the business combination is approved by the corporation's board of
directors prior to the date the interested stockholder acquired its stock;
- the interested stockholder acquired at least 85% of the voting stock of
the corporation in the transaction in which it became an interested
stockholder; or
- the business combination is approved by a majority of the board of
directors and by the affirmative vote of two-thirds of the votes entitled
to be cast by disinterested stockholders at an annual or special meeting.
TRANSFER AGENT AND REGISTRAR
Wells Fargo Bank Minnesota, National Association serves as the transfer
agent and registrar for our common stock.
PLAN OF DISTRIBUTION
We may sell securities offered by this Prospectus in and/or outside the
United States:
- through underwriters or dealers;
- directly to a limited number of purchasers or to a single purchaser; or
- through agents.
We will describe in the applicable Prospectus Supplement the particular
terms of any offering of securities, including:
- the name or names of any underwriters or agents;
- the purchase price of the securities;
- our net proceeds from the sale;
- any underwriting discounts and other items constituting underwriters'
compensation;
- the initial public offering price; and
- any discounts or concessions allowed or reallowed or paid to dealers
We may change the initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers from time to time.
If we offer the securities through underwriters, the underwriters will
acquire the securities for their own account and may resell the securities from
time to time in one or more transactions, including negotiated transactions, at
a fixed public offering price or at varying prices determined at the time of
sale. We may offer the securities to the public either through underwriting
syndicates represented by
21
one or more managing underwriters or directly by one or more underwriters. We
will specify on the cover of the applicable Prospectus Supplement the
underwriter or underwriters with respect to a particular underwritten offering
of securities, or, if an underwriting syndicate is used, the managing
underwriter or underwriters. Unless we state otherwise, the obligations of the
underwriters to purchase the securities will be subject to certain conditions,
and the underwriters will be obligated to purchase all of the securities if any
are purchased.
If we offer the securities through dealers, and if so specified in the
applicable Prospectus Supplement, we will sell the securities to the dealers as
principals. The dealers may then resell the securities to the public at varying
prices determined by the dealers at the time of resale. We will list the names
of the dealers and describe the terms of the transaction in the applicable
Prospectus Supplement.
We may also sell the securities directly or through agents we designate from
time to time. We will name in the applicable Prospectus Supplement any agent
involved in the offer or sale of the securities in respect to which this
prospectus is delivered, and describe any commissions we will pay to the agent.
We may agree to indemnify any underwriters, dealers and agents against
certain civil liabilities, including liabilities under the Securities Act, or to
contribute with respect to payments which the underwriters, dealers or agents
may be required to make in respect thereof. Underwriters, dealers and agents may
be customers of, may engage in transactions with or perform services for, us in
the ordinary course of business.
LEGAL MATTERS
Thomas A. Rossi, Esq., our Associate General Counsel, will issue an opinion
about the legality of securities offered pursuant to this Prospectus. Mr. Rossi
is a beneficial owner of our common stock.
EXPERTS
Our consolidated financial statements and schedule included in our Annual
Report on Form 10-K for the year ended December 31, 1999, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such financial statements
are, and audited financial statements to be included in subsequently filed
documents will be, incorporated herein in reliance upon the reports of Ernst &
Young LLP pertaining to such financial statements (to the extent covered by
consents filed with the Securities and Exchange Commission) given on the
authority of such firm as experts in accounting and auditing.
With respect to our unaudited condensed consolidated interim financial
information for the three-month periods ended March 31, 2000 and 1999, the three
and six-month periods ended June 30, 2000 and 1999 and the three and nine-month
periods ended September 30, 2000 and 1999, incorporated by reference in this
Prospectus, Ernst & Young LLP have reported that they have applied limited
procedures in accordance with professional standards for a review of such
information. However, their separate report, included in our Quarterly Reports
on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000 and September
30, 2000, and incorporated herein by reference, states that they did not audit
and they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their support on such information should
be restricted considering the limited nature of the review procedures applied.
The independent auditors are not subject to the liability provisions of
Section 11 of the Securities Act of 1933 (the "Act") for their report on the
unaudited interim financial information because that report is not a "report" or
a "part" of the Registration Statement prepared or certified by the auditors
within the meaning of Sections 7 and 11 of the Act.
22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimated, except the
SEC registration fee.
SEC registration fee........................................ $375,000
Legal fees and expenses..................................... *
Printing and engraving...................................... *
Fees of accountants......................................... *
Fees of trustees *
Blue sky fees and expensesx................................. *
Rating agency fees.......................................... *
Miscellaneous............................................... *
--------
Total................................................... $ *
========
------------------------
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer or director of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers and directors
in an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation in the
performance of his duty. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred.
In accordance with the DGCL, our Restated Certificate of Incorporation
contains a provision limiting the personal liability of our directors for
violations of their fiduciary duty. This provision eliminates each director's
liability to us or our stockholders for monetary damages except to the extent
provided by the DGCL (i) for any breach of the director's duty of loyalty to us
or our stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions or (iv) for any
transaction from which a director derived an improper benefit. The effect of
this provision is to eliminate the personal liability of directors for monetary
damages for actions involving a breach of their fiduciary duty of care,
including any such actions involving gross negligence.
II-1
Our Restated Certificate of Incorporation provides for indemnification of
our officers and directors to the fullest extent permitted by applicable law.
Our By-laws provide that we will indemnify an officer or director for expenses,
judgments, fines and amounts paid in settlement in connection with their defense
of an action except that, in actions brought by us or in our right, we (i) will
not indemnify for judgments, fines and amounts paid in settlement, nor
(ii) indemnify for any expenses if the director or officer is found to be liable
to us unless the court determines that we should pay the expenses.
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER
---------------------
1.1 Form of Underwriting Agreement.*
1.2 Form of Distribution Agreement.*
4.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1995 (Commission File No. 1-11073)).
4.2 By-laws (incorporated by reference to Exhibit 3 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998 (Commission File No. 1-11073)).
4.3 Indenture dated as of March 26, 1993 between the Registrant
and Wells Fargo Bank Minnesota, National Association, as
Trustee, relating to the senior debt securities
(incorporated by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-3
(Registration No. 33-74568)).
4.4 Indenture dated as of April 1, 1996 between the Registrant
and The Bank of New York, as Trustee, relating to the
subordinated debt securities (incorporated by reference to
Exhibit 4.4 to the Registrant's Registration Statement on
Form S-3 (Registration No. 333-4012)).
4.5 Form of Note.*
5.1 Opinion of Thomas A. Rossi, Esq.
12.1 Statement of Calculation of Ratio of Earnings to Fixed
Charges (incorporated by reference to Exhibit 12 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999 (Commission File No. 1-11073)).
12.2 Statement of Calculation of Ratio of Earnings to Fixed
Charges (incorporated by reference to Exhibit 12 the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000 (Commission File No. 1-11073))
15.1 Letter re: Unaudited Interim Financial Information.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Thomas A. Rossi, Esq. (included in Exhibit 5).
24.1 Powers of Attorney (included in the signature page of this
Registration Statement).
25.1 Statement of Eligibility of Wells Fargo Bank Minnesota,
National Association under the Trust Indenture Act of 1939
on Form T-1 relating to the senior indenture.**
25.2 Statement of Eligibility of The Bank of New York under the
Trust Indenture Act of 1939 on Form T-1 relating to the
subordinated indenture.**
------------------------
* To be filed by amendment or by a report on Form 8-K pursuant to Item 601 of
Regulation.
** To be filed by amendment.
II-2
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such
II-3
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the Securities offered
therein, and the offering of such Securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Omaha, State of Nebraska, on March 8, 2001.
FIRST DATA CORPORATION
By: /s/ THOMAS A. ROSSI
------------------------------------------
Thomas A. Rossi
ASSISTANT SECRETARY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints Michael T. Whealy and Thomas A.
Rossi, and each or any of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ HENRY C. DUQUES Chairman of the Board and
-------------------------------------- Chief Executive Officer February 28, 2001
Henry C. Duques
/s/ KIMBERLY S. PATMORE Executive Vice President and
-------------------------------------- Chief Financial Officer February 28, 2001
Kimberly S. Patmore (Principal Financial Officer)
/s/ THOMAS L. MOORE Vice President and Corporate
-------------------------------------- Controller February 28, 2001
Thomas L. Moore (Principal Accounting Officer)
II-5
SIGNATURE TITLE DATE
--------- ----- ----
/s/ CHARLES T. FOTE
-------------------------------------- Director February 28, 2001
Charles T. Fote
/s/ COURTNEY F. JONES
-------------------------------------- Director February 28, 2001
Courtney F. Jones
/s/ ROBERT J. LEVENSON
-------------------------------------- Director February 20, 2001
Robert J. Levenson
/s/ JAMES D. ROBINSON III
-------------------------------------- Director February 28, 2001
James D. Robinson III
/s/ CHARLES T. RUSSELL
-------------------------------------- Director February 28, 2001
Charles T. Russell
/s/ BERNARD L. SCHWARTZ
-------------------------------------- Director February 28, 2001
Bernard L. Schwartz
/s/ JOAN E. SPERO
-------------------------------------- Director February 20, 2001
Joan E. Spero
/s/ GAREN K. STAGLIN
-------------------------------------- Director February 28, 2001
Garen K. Staglin
/s/ ARTHUR F. WEINBACH
-------------------------------------- Director February 28, 2001
Arthur F. Weinbach
II-6
EXHIBIT INDEX
EXHIBIT
NUMBER
---------------------
1.1 Form of Underwriting Agreement.*
1.2 Form of Distribution Agreement.*
4.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1995 (Commission File No. 1-11073)).
4.2 By-laws (incorporated by reference to Exhibit 3 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998 (Commission File No. 1-11073)).
4.3 Indenture dated as of March 26, 1993 between the Registrant
and Wells Fargo Bank Minnesota, National Association, as
Trustee, relating to the senior debt securities
(incorporated by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-3
(Registration No. 33-74568)).
4.4 Indenture dated as of April 1, 1996 between the Registrant
and The Bank of New York, as Trustee, relating to the
subordinated debt securities (incorporated by reference to
Exhibit 4.4 to the Registrant's Registration Statement on
Form S-3 (Registration No. 333-4012)).
4.5 Form of Note.*
5.1 Opinion of Thomas A. Rossi, Esq.
12.1 Statement of Calculation of Ratio of Earnings to Fixed
Charges (incorporated by reference to Exhibit 12 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999 (Commission File No. 1-11073)).
12.2 Statement of Calculation of Ratio of Earnings to Fixed
Charges (incorporated by reference to Exhibit 12 the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000 (Commission File No. 1-11073))
15.1 Letter re: Unaudited Interim Financial Information.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Thomas A. Rossi, Esq. (included in Exhibit 5).
24.1 Powers of Attorney (included in the signature page of this
Registration Statement).
25.1 Statement of Eligibility of Wells Fargo Bank Minnesota,
National Association under the Trust Indenture Act of 1939
on Form T-1 relating to the senior indenture.**
25.2 Statement of Eligibility of The Bank of New York under the
Trust Indenture Act of 1939 on Form T-1 relating to the
subordinated indenture.**
------------------------
* To be filed by amendment or by a report on Form 8-K pursuant to Item 601 of
Regulation.
** To be filed by amendment.