CALCULATION
OF REGISTRATION FEE
Title
of each Class
of
Securities
to
be Registered
|
Amount
to be
Registered (1)
|
Proposed
Maximum
Offering
Price
per
Unit (2)
|
Proposed
Maximum
Aggregate
Offering
Price (2)
|
Amount of
Registration
Fee (2)
|
Common
Stock, $0.00001 par value per share (3)
|
|
|
|
|
Preferred
Stock, $0.00001 par value per share
|
|
|
|
|
Depositary
Shares (4)
|
|
|
|
|
Warrants
|
|
|
|
|
Debt
Securities
|
|
|
|
|
Guarantee
of Debt Securities (5)
|
|
|
|
|
Units
|
|
|
|
|
Total
|
|
|
$250,000,000
|
$13,950
|
(1)
|
There
is being registered hereunder such indeterminate number or amount of
common stock, preferred stock, depositary shares, warrants, debt
securities and units as may from time to time be issued by the registrant
at indeterminate prices and as may be issuable upon conversion,
redemption, exchange, exercise or settlement of any securities registered
hereunder, including under any applicable antidilution
provisions.
|
(2)
|
Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(o). In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this registration
statement exceed $250,000,000. Any securities registered hereunder may be
sold separately or as units with other securities registered hereunder.
The proposed maximum offering price per unit will be determined from time
to time in connection with the issuance of the securities registered
hereunder.
|
(3)
|
This
Registration Statement also covers an equal number of preferred share
purchase rights pursuant to our stockholder rights plan, which rights will
be transferable only with related shares of common
stock.
|
(4)
|
Each
depositary share will be issued under a depositary agreement, will
represent an interest in a fractional share or multiple shares of
preferred stock and will be evidenced by a depositary
receipt.
|
(5)
|
Guarantees
may be provided by subsidiaries of the registrant of the payment of the
principal and interest on the debt securities. No additional consideration
will be received for the guarantees and, pursuant to Rule 457(n), no
additional fee is required.
|
The registrant hereby amends this
registration statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment that
specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until
the registration statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said Section 8(a), may
determine.
*ADDITIONAL
SUBSIDIARY GUARANTOR REGISTRANTS
EXACT
NAME OF ADDITIONAL
REGISTRANT
AS SPECIFIED IN ITS CHARTER
|
|
STATE
OR OTHER
JURISDICTION
OF
INCORPORATION
OR
ORGANIZATION
|
|
PRIMARY
STANDARD
INDUSTRIAL
CLASSIFICATION
CODE
NUMBER
|
|
I.R.S.
EMPLOYEE IDENTIFICATION NO.
|
Boots
& Coots Services, L.L.C.
|
|
Texas
|
|
3533
|
|
76-0475739
|
Boots
& Coots Special Services, Inc.
|
|
Texas
|
|
1389
|
|
74-2674917
|
Hell
Fighters, Inc.
|
|
Texas
|
|
1389
|
|
76-0481874
|
IWC
Engineering, Inc.
|
|
Texas
|
|
1389
|
|
76-0480900
|
Boots
& Coots Services, Inc.
|
|
Delaware
|
|
3533
|
|
76-0676541
|
Elmagco,
Inc.
|
|
Delaware
|
|
1389
|
|
76-0298293
|
HWC
Limited
|
|
Louisiana
|
|
3533
|
|
72-1205424
|
Snubco
USA, Inc.
|
|
Wyoming
|
|
3533
|
|
26-0539137
|
Stasso
Holdings, Inc.
|
|
Wyoming
|
|
3533
|
|
26-0539181
|
StassCo
Pressure Control, LLC
|
|
Wyoming
|
|
3533
|
|
32-0154211
|
J.W.
Wright, Inc.
|
|
Texas
|
|
1389
|
|
76-0292845
|
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED NOVEMBER 16, 2009
PROSPECTUS
Boots
& Coots, Inc.
Debt
Securities
Common
Stock
Preferred
Stock
Depositary
Shares
Warrants
Units
__________________
We may
offer from time to time our debt securities, common stock, preferred stock,
depositary shares, warrants and units. Our subsidiaries may guarantee the debt
securities offered by this prospectus.
This
prospectus describes the general terms of the securities offered by us and the
general manner in which we will offer these securities. The specific terms of
any securities we offer, including any guarantees by our subsidiaries, will be
included in a supplement to this prospectus. The prospectus supplement will also
describe the specific manner in which we will offer the securities. Any
prospectus supplement may also add, update or change information contained in
this prospectus. You should read this prospectus and any prospectus supplement
carefully before you make your investment decision.
Our
common stock is listed on the NYSE Amex exchange under the trading symbol
“WEL.”
Investing
in securities involves significant risks. You should carefully read
the risk factors included in the applicable prospectus supplement and in our
periodic reports and other information filed with the Securities and Exchange
Commission before investing in our securities.
We may
sell these securities to or through underwriters, to other purchasers and/or
through agents. The supplements to this prospectus will specify the
names of and arrangements with any underwriters or agents.
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.
This
prospectus is
dated ,
2009
_______________________
TABLE
OF CONTENTS
|
Page
|
About
This Prospectus
|
1
|
Where
You Can Find More Information
|
1
|
Documents
Incorporated by Reference into this Prospectus
|
2
|
Forward-Looking
Statements
|
2
|
The
Company
|
3
|
Risk
Factors
|
4
|
Use
of Proceeds
|
4
|
Ratio
of Earnings to Fixed Charges
|
4
|
The
Securities We May Offer
|
5
|
Description
of Debt Securities
|
5
|
Description
of Capital Stock
|
13
|
Description
of Depositary Shares
|
19
|
Description
of Warrants
|
21
|
Description
of Units
|
23
|
Plan
of Distribution
|
24
|
Legal
Matters
|
25
|
Experts
|
25
|
_______________________
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, which we refer to as the “SEC,” using a “shelf”
registration process. Under this shelf registration process, we may, over time,
offer and sell any combination of the securities described in this prospectus in
one or more offerings up to a total dollar amount of $250,000,000. This
prospectus provides you with a general description of the securities that we may
offer. Each time we offer securities, we will provide one or more prospectus
supplements that will contain specific information about the terms of that
offering. A prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with the additional information described under
the heading “Where You Can Find More Information” below.
You
should rely only on the information included or incorporated by reference in
this prospectus and the applicable prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer to sell in any jurisdiction in which the offer is not permitted. You
should not assume that the information in this prospectus, any prospectus
supplement or any other document incorporated by reference in this prospectus is
accurate as of any date other than the dates of the applicable documents in
which such information appears even though this prospectus and any accompanying
prospectus supplement is delivered or securities sold at a later
date.
Unless
the context requires otherwise or unless otherwise noted, all references in this
prospectus or any prospectus supplement to “Boots & Coots” and to the
“Company,” “we,” “us” or “our” are to Boots & Coots, Inc. and its
subsidiaries.
WHERE
YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current
reports, proxy statements and other information with the SEC (File No.
001-13817). Our SEC filings are available to the public over the Internet at the
SEC’s website at
www.sec.gov
. You may also
read and copy at prescribed rates any document we file at the SEC’s public
reference room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain
information on the operation of the SEC’s public reference room by calling the
SEC at 1-800-SEC-0330.
DOCUMENTS
INCORPORATED BY REFERENCE INTO THIS PROSPECTUS
The SEC allows us to “incorporate by
reference” the information that we file with them, which means that we can
disclose important information to you by referring you to other documents. The
information incorporated by reference is an important 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
and all documents that we subsequently file with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (other than, in each case, information
furnished rather than filed):
|
·
|
our
Annual Report on Form 10-K for the year ended December 31, 2008, filed
with the SEC on March 12, 2009;
|
|
·
|
our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2009, June
30, 2009 and September 30, 2009 filed with the SEC on May 7, 2009, August
10, 2009 and November 9, 2009,
respectively;
|
|
·
|
our
Current Reports on Form 8-K filed on February 17, 2009, May 13, 2009 and
July 2, 2009; and
|
|
·
|
the
description of our common stock set forth in our registration statements
filed pursuant to Section 12 of the Exchange Act, including any amendment
or report filed for the purpose of updating such
description.
|
You may request a copy of these filings
(other than an exhibit to a filing unless that exhibit is specifically
incorporated by reference into that filing), at no cost, by writing to us at the
following address or calling the following number:
Director,
Investor Relations
Boots
& Coots, Inc.
7908 N.
Sam Houston Parkway W., 5th Floor
Houston,
Texas 77064
(281)
931−8884
FORWARD-LOOKING
STATEMENTS
Included and incorporated by reference
in this prospectus are certain forward-looking statements, within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. All statements, other
than statements of historical facts, included or incorporated by reference in
this prospectus that address activities, events or developments that we expect
or anticipate will or may occur in the future are forward-looking statements,
including statements regarding our future financial position, growth strategy,
budgets, projected costs, and plans and objectives of management for future
operations. We use the words “may,” “will,” “expect,” “anticipate,”
“estimate,” “believe,” “continue,” “intend,” “plan,” “budget” and other similar
words to identify forward-looking statements. You should read statements that
contain these words carefully and should not place undue reliance on these
statements. Although we believe our expectations reflected in these
forward-looking statements are based on reasonable assumptions, no assurance can
be given that these expectations or assumptions will prove to have been correct.
Important factors that could cause actual results to differ materially from the
expectations reflected in the forward-looking statements include, but are not
limited to, the following factors and the other factors described under the
caption “Risk Factors” in this prospectus and in our Form 10-K incorporated by
reference in this prospectus:
|
·
|
changes
in economic or political conditions in the markets in which we operate;
and
|
|
·
|
the
inherent risks associated with our operations, such as equipment defects,
malfunctions and natural
disasters.
|
We
believe that it is important to communicate our expectations of future
performance to our investors. However, events may occur in the future that we
are unable to accurately predict or control. We do not undertake any obligation
to publicly update or revise publicly any forward-looking
statements.
The
following highlights information about us and our business contained elsewhere
or incorporated by reference in this prospectus. It is not complete and does not
contain all of the information that you should consider before investing in our
securities. To fully understand our business you should carefully read this
prospectus together with the more detailed information incorporated by reference
in this prospectus.
THE
COMPANY
We
provide a suite of integrated pressure control and related services to onshore
and offshore oil and gas exploration and development companies, principally in
North America, South America, North Africa, West Africa, the Middle East and
Asia. Our customers include major and independent oil and gas
companies in the U.S. market and major international and foreign national oil
and gas producers as well as other oilfield service companies. Our
service lines are organized into three business segments: Pressure Control, Well
Intervention and Equipment Services. Our Pressure Control segment
consists of prevention and risk management services designed to reduce the
number and severity of critical events such as oil and gas well fires, blowouts
or other incidences due to loss of control at the well, and personnel, equipment
and emergency services utilized during a critical well event. We have
a long history in the oil and gas industry and are widely recognized for our
emergency response services. Our Well Intervention segment includes
services that are designed to enhance production for oil and gas operators and
consists primarily of hydraulic workover and snubbing services. Our Equipment
Services segment consists primarily of pressure control equipment rentals and
services, designed for safer and more efficient production under high pressure
situations.
Corporate
Information
Boots
& Coots is a Delaware corporation incorporated in April 1988. Our principal
offices are located at 7908 N. Sam Houston Parkway W., 5th Floor, Houston, Texas
77064, and our telephone number is (281) 931-8884. Our website can be found at
www.boots-coots.com
.
Unless specifically incorporated by reference in this prospectus, information
that you may find on our website is not part of this
prospectus.
RISK
FACTORS
An
investment in our securities involves risks. Before you invest in our
securities, you should carefully consider the risk factors included in our most
recent Annual Report on Form 10-K, subsequent Quarterly Reports on Form 10-Q and
those that may be included in the applicable prospectus supplement, together
with all of the other information included in this prospectus, any prospectus
supplement and the other documents we incorporate by reference. If any of these
risks were to materialize, our business, results of operations, cash flows and
financial condition could be materially adversely affected. In that case, our
ability to pay interest on, or the principal of, any debt securities, may be
reduced, the trading price of our securities could decline and you could lose
all or part of your investment.
USE
OF PROCEEDS
Except as
otherwise described in an applicable prospectus supplement, we intend to use the
net proceeds from the sale of the securities for one or more of the following
purposes:
|
·
|
refinance,
in whole or in part, existing
indebtedness;
|
|
·
|
finance,
in whole or in part, the cost of
acquisitions;
|
|
·
|
finance
capital expenditures and capacity expansion;
and/or
|
|
·
|
general
corporate purposes and working
capital.
|
Until we
apply the proceeds from a sale of securities to their intended purposes, we may
invest these proceeds in short-term investments.
The
specific allocations of the proceeds we receive from the sale of our securities
will be described in the applicable prospectus supplement.
We will
not receive proceeds from sale of our common stock by selling stockholders
except as may otherwise be stated in an applicable prospectus
supplement.
RATIO
OF EARNINGS TO FIXED CHARGES
The
following table sets forth our ratio of earnings to fixed charges for the
periods indicated on a consolidated basis. You should read these ratios of
earnings to fixed charges in connection with our consolidated and condensed
consolidated financial statements, including the notes to those statements,
incorporated by reference into this prospectus.
|
|
Nine
Months Ended
September
30,
|
|
|
|
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio
of earnings to fixed charges
|
|
|
3.1
|
|
|
|
11.5
|
|
|
|
5.2
|
|
|
|
6.6
|
|
|
|
7.6
|
|
|
|
1.4
|
|
The ratio of earnings to fixed charges
has been computed by dividing earnings by fixed charges. For this purpose,
earnings consist of income (loss) before income taxes and minority interests
plus fixed charges, excluding capitalized interest. Fixed charges consist of
interest expense, including capitalized interest, amortization of debt financing
costs and an estimate of the interest component of rental
expense.
THE
SECURITIES WE MAY OFFER
The
descriptions of the securities contained in this prospectus, together with the
applicable prospectus supplement, summarize certain material terms and
provisions of the various types of securities that we may offer. The particular
material terms of the securities offered by a prospectus supplement will be
described in that prospectus supplement. Any prospectus supplement may add,
update or change the information contained in this prospectus. The prospectus
supplement will also contain information, where applicable, about material
United States federal income tax considerations relating to the offered
securities, and the securities exchange, if any, on which the offered securities
will be listed. For more information, please review the forms of these
documents, which are or will be filed with the SEC and will be available as
described under the heading “Where You Can Find More Information”
above.
To the
extent the information contained in the applicable prospectus supplement differs
from the summaries provided in this prospectus, you should rely on the
information in the prospectus supplement.
We may
from time to time offer to sell together or separately in one or more
offerings:
|
·
|
Debt
securities consisting of senior notes, subordinated notes, debentures or
other evidences of indebtedness, in one or more series, which may be
convertible into or exchangeable for preferred stock or common
stock;
|
|
·
|
Common
stock, $0.00001 par value;
|
|
·
|
Preferred
stock, $0.00001 par value, in one or more series, which may be convertible
into or exchangeable for debt securities or common
stock;
|
|
·
|
Depositary
shares representing a fraction of a share of a particular series of
preferred stock;
|
|
·
|
Warrants
to purchase common stock, preferred stock or debt securities, which may be
convertible into or exchangeable for common stock, preferred stock and/or
debt securities; and
|
|
·
|
Units
consisting of one or more debt securities, shares of common stock or
preferred stock, warrants or any combination of such
securities.
|
DESCRIPTION
OF DEBT SECURITIES
This section describes the general
terms and provisions of the Debt Securities that we may offer from time to time
in one or more series. When we offer to sell a particular series of Debt
Securities we will provide the specific terms of the series in a prospectus
supplement, which may provide information that is different from this
prospectus. Accordingly, for a description of the terms of any series of Debt
Securities, you must refer to this prospectus, the prospectus supplement
relating to that series and the related indenture and note. To the extent the
information contained in the prospectus supplement differs from this summary
description, you should rely on the information in the applicable prospectus
supplement, indenture and note.
The Debt
Securities will either be our Senior Debt Securities or our Subordinated Debt
Securities. The Senior Debt Securities and the Subordinated Debt Securities will
be issued under separate indentures between us and a trustee to be named in the
indenture. Senior Debt Securities will be issued under a “Senior Indenture” and
Subordinated Debt Securities will be issued under a “Subordinated Indenture.”
Together, the Senior Indenture and the Subordinated Indenture are called the
“indentures.”
The
following description of our Debt Securities is intended as a summary only and
is qualified in its entirety by reference to the applicable Senior Indenture,
Subordinated Indenture, senior note and subordinated note, copies of which are
filed as exhibits to, and incorporated by reference in, the registration
statement of which this prospectus forms a part. In the summary below, we have
included references to article or section numbers of the applicable indenture so
that you can easily locate these provisions. Whenever we refer in this
prospectus or in the prospectus supplement to particular articles or sections or
defined terms of the indentures, those articles or sections or defined terms are
incorporated by reference herein or therein, as applicable. The indentures will
be subject to and governed by certain provisions of the Trust Indenture Act of
1939, and we refer you to the indentures and the Trust Indenture Act for a
statement of such provisions. Capitalized terms used in the below summary have
the meanings specified in the indentures.
We
encourage you to carefully review and consider the complete provisions of the
applicable indenture and note before investing in our Debt
Securities.
General
The Debt
Securities may be senior or subordinated and convertible into shares of our
common stock or preferred stock. The indentures do not limit the amount of Debt
Securities that we may issue and permit us to issue Debt Securities from time to
time. The prospectus supplement relating to a particular series of Debt
Securities will describe the specific terms of those Debt Securities and the
indenture, which may include, without limitation, one or more of the
following:
|
(1)
|
the
designation, aggregate principal amount and authorized denominations of
the Debt Securities;
|
|
(2)
|
whether
the Debt Securities are Senior Debt Securities or Subordinated Debt
Securities and, if Subordinated Debt Securities, the related subordination
terms;
|
|
(3)
|
whether
any Subsidiary Guarantor will provide a Subsidiary Guarantee of the Debt
Securities;
|
|
(4)
|
any
limit on the aggregate principal amount of the Debt
Securities;
|
|
(5)
|
the
dates on which the principal of the Debt Securities will be
payable;
|
|
(6)
|
the
interest rate that the Debt Securities will bear or the method for
determining the rate, the date interest will begin to accrue, and the
interest payment dates for the Debt
Securities;
|
|
(7)
|
the
places where payments on the Debt Securities will be
payable;
|
|
(8)
|
any
terms upon which the Debt Securities may be redeemed, in whole or in part,
at our option or at the option of the Holders of the Debt Securities and
the other detailed terms and provisions of such optional
redemption;
|
|
(9)
|
any
conversion or exchange features;
|
|
(10)
|
any
sinking fund or other provisions that would obligate us to repurchase or
otherwise redeem the Debt
Securities;
|
|
(11)
|
the
portion of the principal amount, if less than all, of the Debt Securities
that will be payable upon declaration of acceleration of the Maturity of
the Debt Securities;
|
|
(12)
|
whether
the Debt Securities are defeasible;
|
|
(13)
|
any
addition to or change in the Events of
Default;
|
|
(14)
|
whether
the Debt Securities are convertible into our capital stock and, if so, the
terms and conditions upon which conversion will be effected, including the
initial conversion price or conversion rate, as applicable, or how each
will be calculated, and any adjustments thereto and the conversion
period;
|
|
(15)
|
any
addition to or change in the covenants in the indenture applicable to the
Debt Securities; and
|
|
(16)
|
any
other terms of the Debt Securities not inconsistent with the provisions of
the applicable indenture.
|
Debt
securities may be sold at a substantial discount below their principal amount.
Special United States federal income tax considerations applicable to Debt
Securities sold at an Original Issue Discount may be described in the applicable
prospectus supplement. In addition, special United States federal income tax or
other considerations applicable to any Debt Securities that are denominated in a
currency or currency unit other than United States dollars may be described in
the applicable prospectus supplement.
Subordination
of Subordinated Debt Securities
The
indebtedness evidenced by the Subordinated Debt Securities will, to the extent
set forth in the Subordinated Indenture with respect to each series of
Subordinated Debt Securities, be subordinate in right of payment to the prior
payment of certain of our other indebtedness. The prospectus supplement relating
to any Subordinated Debt Securities will summarize the subordination provisions
of the Subordinated Indenture applicable to that series including:
|
(1)
|
the
applicability and effect of the subordination provisions upon any payment
or distribution respecting that series following any liquidation,
dissolution or other winding-up, or any assignment for the benefit of
creditors or other marshaling of assets or any bankruptcy, insolvency or
similar proceedings;
|
|
(2)
|
the
applicability and effect of the subordination provisions in the event of
specified defaults with respect to any Senior Debt, including the
circumstances under which and the periods in which we will be prohibited
from making payments on the Subordinated Debt Securities;
and
|
|
(3)
|
the
definition of Senior Debt applicable to the Subordinated Debt Securities
of that series and, if the series is issued on a senior subordinated
basis, the definition of subordinated debt applicable to that
series.
|
The
prospectus supplement will also describe as of a recent date the approximate
amount of Senior Debt to which the Subordinated Debt Securities of that series
will be subordinated. The Subordinated Indenture does not limit the amount of
Senior Debt that we may incur. As a result of the subordination of the
Subordinated Debt Securities, if we become insolvent, Holders of Subordinated
Debt Securities may receive less on a proportionate basis than other
creditors.
The
failure to make any payment on any of the Subordinated Debt Securities by reason
of the subordination provisions of the Subordinated Indenture described in the
prospectus supplement will not be construed as preventing the occurrence of an
Event of Default with respect to the Subordinated Debt Securities arising from
any such failure to make payment.
The
subordination provisions described above will not be applicable to payments in
respect of the Subordinated Debt Securities from a defeasance trust established
in connection with any legal defeasance or covenant defeasance of the
Subordinated Debt Securities as described under “— Legal Defeasance and Covenant
Defeasance.”
Subsidiary
Guarantee
If
specified in the prospectus supplement, one or more of the Subsidiary Guarantors
will guarantee the Debt Securities of a series. As of the date of this
prospectus, Boots & Coots has no material independent assets or operations
apart from the assets and operations of its subsidiaries. Consequently, in the
event that we offer Debt Securities that are guaranteed by one or more of the
Subsidiary Guarantors, we expect that the structure of such Subsidiary
Guarantees would qualify for the exception in Rule 3-10 of Regulation S-X and
would not require the filing of separate financial statements for each
Subsidiary Guarantor. Unless otherwise indicated in the prospectus supplement,
the following provisions will apply to the Subsidiary Guarantee of the
Subsidiary Guarantor.
Subject
to the limitations described below and in the prospectus supplement, one or more
of the Subsidiary Guarantors will jointly and severally, fully and
unconditionally guarantee the punctual payment when due, whether at Maturity, by
acceleration or otherwise, of all our payment obligations under the indentures
and the Debt Securities of a series, whether for principal of, premium, if any,
or interest on the Debt Securities or otherwise (all such obligations guaranteed
by a Subsidiary Guarantor being herein called the “Guaranteed Obligations”). The
Subsidiary Guarantors will also pay all expenses (including reasonable counsel
fees and expenses) incurred by the applicable trustee in enforcing any rights
under a Subsidiary Guarantee with respect to a Subsidiary
Guarantor.
In the
case of Subordinated Debt Securities, a Subsidiary Guarantor’s Subsidiary
Guarantee will be subordinated in right of payment to the Senior Debt of such
Subsidiary Guarantor on the same basis as the Subordinated Debt Securities are
subordinated to our Senior Debt. No payment will be made by any Subsidiary
Guarantor under its Subsidiary Guarantee during any period in which payments by
us on the Subordinated Debt Securities are suspended by the subordination
provisions of the Subordinated Indenture.
Each
Subsidiary Guarantee will be limited in amount to an amount not to exceed the
maximum amount that can be guaranteed by the relevant Subsidiary Guarantor
without rendering such Subsidiary Guarantee voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
Each
Subsidiary Guarantee will be a continuing guarantee and will:
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(1)
|
remain in full force and effect
until either (a) payment in full of all the applicable Debt
Securities (or such Debt Securities are otherwise satisfied and discharged
in accordance with the provisions of the applicable indenture) or
(b) released as described in the following
paragraph;
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(2)
|
be binding upon each Subsidiary
Guarantor; and
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(3)
|
inure to the benefit of and be
enforceable by the applicable trustee, the Holders and their successors,
transferees and assigns.
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In the
event that (a) a Subsidiary Guarantor ceases to be a subsidiary,
(b) either legal defeasance or covenant defeasance occurs with respect to
the series or (c) all or substantially all of the assets or all of the
Capital Stock of such Subsidiary Guarantor is sold, including by way of sale,
merger, consolidation or otherwise, such Subsidiary Guarantor will be released
and discharged of its obligations under its Subsidiary Guarantee without any
further action required on the part of the trustee or any Holder, and no other
Person acquiring or owning the assets or capital stock of such Subsidiary
Guarantor will be required to enter into a Subsidiary Guarantee. In addition,
the prospectus supplement may specify additional circumstances under which a
Subsidiary Guarantor can be released from its Subsidiary Guarantee.
Denominations,
Exchange and Transfer
The Debt
Securities of each series will be issued in fully registered form, without
coupons, and, unless otherwise specified in the applicable prospectus
supplement, only in denominations of $1,000 and integral multiples
thereof.
At the
option of the Holder, subject to the terms of the applicable indenture and the
limitations applicable to any Global Securities, Debt Securities of each series
may be exchangeable for other Debt Securities of the same series of any
authorized denomination and of a like tenor and aggregate principal
amount.
Subject
to the terms of the applicable indenture and the limitations applicable to any
Global Securities, Debt Securities may be presented for exchange as provided
above or for registration of transfer, duly endorsed or with the form of
transfer endorsed thereon duly executed, at the office of the security registrar
or at the office of any transfer agent designated by us for such purpose. No
service charge will be made for any registration of transfer or exchange of Debt
Securities, but we may require payment of a sum sufficient to cover any tax or
other governmental charge payable in that connection. Such transfer or exchange
will be effected upon the security registrar or such transfer agent, as the case
may be, being satisfied with the documents of title and identity of the Person
making the request. The security registrar and any other transfer agent
initially designated by us for any Debt Securities will be named in the
applicable prospectus supplement. We may at any time designate additional
transfer agents or rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts, except that we will
be required to maintain a transfer agent in each Place of Payment for the Debt
Securities of each series.
If the
Debt Securities of any series, or of any series and specified tenor, are to be
redeemed in part, we will not be required to (1) issue, register the transfer of
or exchange any Debt Securities of that series, or of that series and specified
tenor, as the case may be, during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any such Debt
Securities selected for redemption and ending at the close of business on the
day of such mailing or (2) register the transfer of or exchange any Debt
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Debt Security being redeemed in part.
Modification
and Waiver
We and
the trustee may, without the consent of the Holders of the Debt Securities,
enter into one or more supplemental indentures for, among other things, any of
the following purposes:
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(1)
|
to
evidence the succession under the Indenture of another Person to us or any
Subsidiary Guarantor and to provide for its assumption of our or such
Subsidiary Guarantor’s obligations to Holders of Debt
Securities;
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(1)
|
to
make any changes that would add any additional covenants for the benefit
of the holders of Debt Securities or that do not adversely affect the
rights under the Indenture of the Holders of Debt Securities in any
material respect;
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(2)
|
to
add any additional Events of
Default;
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(3)
|
to
provide for uncertificated notes in addition to or in place of
certificated notes;
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(4)
|
to
secure the Debt Securities;
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(5)
|
to
establish the form or terms of any series of Debt
Securities;
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(6)
|
to
evidence and provide for the acceptance of appointment under the Indenture
of a successor Trustee;
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(7)
|
to
cure any ambiguity, defect or
inconsistency;
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(8)
|
to
add Subsidiary Guarantors; or
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|
(9)
|
in
the case of any Subordinated Debt Security, to make any change in the
subordination provisions that limits or terminates the benefits applicable
to any Holder of Senior Debt.
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Other
modifications and amendments of an Indenture may be made by us, the Subsidiary
Guarantors, if applicable, and the applicable Trustee with the consent of the
Holders of not less than a majority in principal amount of the Outstanding Debt
Securities of each series affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security affected thereby:
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(1)
|
change
the Stated Maturity of the principal of, or any installment of principal
of or interest on, any Debt
Security;
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(2)
|
reduce
the principal amount of, or any premium or interest on, any Debt
Security;
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(3)
|
reduce
the amount of principal of an Original Issue Discount Security or any
other Debt Security payable upon acceleration of the Maturity
thereof;
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|
(4)
|
change
the place or currency of payment of principal of, or any premium or
interest on, any Debt Security;
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|
(5)
|
impair
the right to institute suit for the enforcement of any payment due on or
any conversion right with respect to any Debt
Security;
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|
(6)
|
modify
the subordination provisions in the case of Subordinated Debt Securities,
or modify any conversion provisions, in either case in a manner adverse to
the Holders of the Subordinated Debt
Securities;
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(7)
|
except
as provided in the applicable Indenture, release the Subsidiary Guarantee
of a Subsidiary Guarantor;
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|
(8)
|
reduce
the percentage in principal amount of Outstanding Debt Securities of any
series, the consent of whose Holders is required for modification or
amendment of the Indenture;
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|
(9)
|
reduce
the percentage in principal amount of Outstanding Debt Securities of any
series necessary for waiver of compliance with certain provisions of the
Indenture or for waiver of certain
defaults;
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|
(10)
|
modify
such provisions with respect to modification, amendment or waiver;
or
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|
(11)
|
following
the making of an offer to purchase Debt Securities from any Holder that
has been made pursuant to a covenant in such Indenture, modify such
covenant in a manner adverse to such
Holder.
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The
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series may waive compliance by us with certain restrictive provisions of the
applicable indenture. The Holders of a majority in principal amount of the
Outstanding Debt Securities of any series may waive any past default under the
applicable indenture, except a default in the payment of principal, premium or
interest and certain covenants and provisions of the indenture which cannot be
amended without the consent of the Holder of each Outstanding Debt Security of
such series.
Each of
the indentures provides that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or other
action under the applicable indenture as of any date:
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(1)
|
the
principal amount of an Original Issue Discount Security that will be
deemed to be Outstanding will be the amount of the principal that would be
due and payable as of such date upon acceleration of the maturity to such
date;
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|
(2)
|
if,
as of such date, the principal amount payable at the Stated Maturity of a
Debt Security is not determinable, the principal amount of such Debt
Security deemed to be Outstanding as of such date will be the amount
determined in the manner prescribed for such Debt Security;
and
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|
(3)
|
the
principal amount of a Debt Security denominated in one or more foreign
currencies or currency units that will be deemed to be Outstanding will be
the U.S. dollar equivalent, determined as of such date in the manner
prescribed for such Debt Security, of the principal amount of such Debt
Security (or, in the case of a Debt Security described in clause (1) or
(2) above, of the amount determined in such
clause).
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Certain
Debt Securities, including those owned by us or any of our affiliates, will not
be deemed to be Outstanding.
Except in
certain limited circumstances, we will be entitled to set any day as a record
date for the purpose of determining the Holders of Outstanding Debt Securities
of any series entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action under the applicable
indenture, in the manner and subject to the limitations provided in the
applicable indenture. In certain limited circumstances, the trustee will be
entitled to set a record date for action by the Holders. If a record date is set
for any action to be taken by the Holders of a particular series, only Persons
who are Holders of Outstanding Debt Securities of that series on the record date
may take such action. To be effective, such action must be taken by the Holders
of the requisite principal amount of such Debt Securities within a specified
period following the record date. For any particular record date, this period
will be 180 days or such other period as may be specified by us (or the trustee,
if it set the record date), and may be shortened or lengthened (but not beyond
180 days) from time to time.
Events
of Default
Except as
otherwise set forth in any prospectus supplement relating to any Debt
Securities, an Event of Default with respect to the Debt Securities of any
series is defined in the indentures as:
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(1)
|
failure
to pay principal of or any premium on any Debt Security of that series
when due, whether or not, in the case of Subordinated Debt Securities,
such payment is prohibited by the subordination provisions of the
Subordinated Indenture;
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|
(2)
|
failure
to pay any interest on any Debt Securities of that series when due,
continued for 30 days, whether or not, in the case of Subordinated Debt
Securities, such payment is prohibited by the subordination provisions of
the Subordinated Indenture;
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|
(3)
|
failure
to deposit any sinking fund payment, when due, in respect of any Debt
Security of that series, whether or not, in the case of Subordinated Debt
Securities, such deposit is prohibited by the subordination provisions of
the Subordinated Indenture;
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(4)
|
failure
to perform or comply with the provisions described under “— Consolidation,
Merger and Sale of Assets”;
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(5)
|
failure
to perform any of our other covenants in such Indenture (other than a
covenant included in such Indenture solely for the benefit of a series
other than that series), continued for 60 days after written notice has
been given by the applicable Trustee, or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series, as
provided in such Indenture;
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(6)
|
any
Debt of ourself, any Significant Subsidiary or, if a Subsidiary Guarantor
has guaranteed the series, such Subsidiary Guarantor, is not paid within
any applicable grace period after final maturity or is accelerated by its
holders because of a default and the total amount of such Debt unpaid or
accelerated exceeds
$10 million;
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|
(7)
|
any
judgment or decree for the payment of money in excess of $10 million
is entered against us, any Significant Subsidiary or, if a Subsidiary
Guarantor has guaranteed the series, such Subsidiary Guarantor, remains
outstanding for a period of 60 consecutive days following entry of such
judgment and is not discharged, waived or
stayed;
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(8)
|
certain
events of bankruptcy, insolvency or reorganization affecting us, any
Significant Subsidiary or, if a Subsidiary Guarantor has guaranteed the
series, such Subsidiary Guarantor;
and
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|
(9)
|
if
any Subsidiary Guarantor has guaranteed such series, the Subsidiary
Guarantee of any such Subsidiary Guarantor is held by a final
non-appealable order or judgment of a court of competent jurisdiction to
be unenforceable or invalid or ceases for any reason to be in full force
and effect (other than in accordance with the terms of the applicable
Indenture) or any Subsidiary Guarantor or any Person acting on behalf of
any Subsidiary Guarantor denies or disaffirms such Subsidiary Guarantor’s
obligations under its Subsidiary Guarantee (other than by reason of a
release of such Subsidiary Guarantor from its Subsidiary Guarantee in
accordance with the terms of the applicable
Indenture).
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Any
additions, deletions or other changes to the Events of Default which will apply
to a series of Debt Securities will be described in the prospectus supplement
relating to such Debt Securities.
If an
Event of Default (other than an Event of Default with respect to us described in
clause (8) above) with respect to the Debt Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of that series by notice as provided in the applicable indenture may
declare the principal amount of all the Debt Securities of that series (or, if
the Debt Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Debt Securities as may be specified by
the terms thereof) to be due and payable immediately. If an Event of Default
with respect to us described in clause (8) above with respect to the Debt
Securities of that series at the time Outstanding occurs, the principal amount
of all the Debt Securities of that series (or, if the Debt Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount of such Debt Securities as may be specified by the terms thereof) will
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable. At any time after
such a declaration of acceleration with respect to the Debt Securities of any
series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee, the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such declaration.
Under the
indentures, the Trustee must give to the Holders of the Debt Securities of any
series notice of all uncured defaults known to it with respect to such series
within 90 days after such a default occurs. However, except in the case of a
default in the payment of principal of or any premium or interest on the Debt
Securities of any series, or default in the payment of any sinking or purchase
fund installment with respect to such Debt Securities, the Trustee shall be
protected in withholding such notice if it determines in good faith that the
withholding of such notice is in the interests of the Holders of the Debt
Securities of such series.
Subject
to the provisions of the indentures relating to the duties of the Trustees in
case an Event of Default has occurred and is continuing, each Trustee will be
under no obligation to exercise any of its rights or powers under the applicable
indenture at the request or direction of any of the Holders, unless such Holders
have offered to such Trustee reasonable indemnity. Subject to such provisions
for the indemnification of the Trustees, the Holders of a majority in principal
amount of the Outstanding Debt Securities of any series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of that series; provided that such
direction does not conflict with any rule of law or the applicable indenture and
subject to certain other limitations.
No Holder
of any Debt Security of any series will have any right to institute any
proceeding with respect to the applicable indenture, unless:
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(1)
|
such
Holder has previously given the Trustee under the applicable indenture
written notice of a continuing Event of Default with respect to the Debt
Securities of that series;
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|
(2)
|
the
Holders of at least 25% in principal amount of the Outstanding Debt
Securities of that series have made written request, and such Holder or
Holders have offered reasonable security or indemnity, to the Trustee to
institute such proceeding as trustee;
and
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|
(3)
|
the
Trustee has failed to institute such proceeding, and has not received from
the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such request,
within 60 days after such notice, request and
offer.
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However,
such limitations do not apply to a suit instituted by a Holder of a Debt
Security for the enforcement of payment of the principal of and any premium and
interest on such Debt Security on or after the applicable due date specified in
such Debt Security.
We are
required to furnish to each Trustee annually a statement by certain of our
officers as to whether or not we, to their best knowledge, are in default in the
performance or observance of any of the terms, provisions and conditions of the
applicable indenture and, if so, specifying all such known defaults and the
nature and status thereof.
Global
Securities
Some or
all of the Debt Securities of any series may be represented, in whole or in
part, by one or more Global Securities that will have an aggregate principal
amount equal to that of the Debt Securities they represent. Each Global Security
will be registered in the name of a Depositary or its nominee identified in the
applicable prospectus supplement, will be deposited with such Depositary or
nominee or its custodian and will bear a legend regarding the restrictions on
exchanges and registration of transfer thereof referred to below and any such
other matters as may be provided for pursuant to the applicable
Indenture.
Notwithstanding
any provision of the Indentures or any Debt Security described in this
prospectus, no Global Security may be exchanged in whole or in part for Debt
Securities registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary for such
Global Security or any nominee of such Depositary unless:
|
(1)
|
the
Depositary has notified us that it is unwilling or unable to continue as
Depositary for such Global Security or has ceased to be qualified to act
as such as required by the applicable Indenture, and in either case we
fail to appoint a successor Depositary within 90
days;
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|
(2)
|
an
Event of Default with respect to the Debt Securities represented by such
Global Security has occurred and is continuing and the Trustee has
received a written request from the Depositary to issue certificated Debt
Securities; or
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|
(3)
|
other
circumstances exist, in addition to or in lieu of those described above,
as may be described in the applicable prospectus
supplement.
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All
certificated Debt Securities issued in exchange for a Global Security or any
portion thereof will be registered in such names as the Depositary may
direct.
As long
as the Depositary, or its nominee, is the registered Holder of a Global
Security, the Depositary or such nominee, as the case may be, will be considered
the sole owner and Holder of such Global Security and the Debt Securities that
it represents for all purposes under the Debt Securities and the applicable
Indenture. Except in the limited circumstances referred to above, owners of
beneficial interests in a Global Security will not be entitled to have such
Global Security or any Debt Securities that it represents registered in their
names, will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange for those interests and will not be
considered to be the owners or Holders of such Global Security or any Debt
Securities that it represents for any purpose under the Debt Securities or the
applicable Indenture. All payments on a Global Security will be made to the
Depositary or its nominee, as the case may be, as the Holder of the security.
The laws of some jurisdictions may require that some purchasers of Debt
Securities take physical delivery of such Debt Securities in certificated form.
These laws may impair the ability to transfer beneficial interests in a Global
Security.
Ownership
of beneficial interests in a Global Security will be limited to institutions
that have accounts with the Depositary or its nominee (“participants”) and to
persons that may hold beneficial interests through participants. In connection
with the issuance of any Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
Debt Securities represented by the Global Security to the accounts of its
participants. Ownership of beneficial interests in a Global Security will be
shown only on, and the transfer of those ownership interests will be effected
only through, records maintained by the Depositary (with respect to
participants’ interests) or any such participant (with respect to interests of
Persons held by such participants on their behalf). Payments, transfers,
exchanges and other matters relating to beneficial interests in a Global
Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of us, the Subsidiary Guarantors, the
Trustees or the agents of us, the Subsidiary Guarantors or the Trustees will
have any responsibility or liability for any aspect of the Depositary’s or any
participant’s records relating to, or for payments made on account of,
beneficial interests in a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
Payment
and Paying Agents
Unless
otherwise indicated in the applicable prospectus supplement, payment of interest
on a Debt Security on any interest payment date will be made to the Person in
whose name such Debt Security (or one or more predecessor Debt Securities) is
registered at the close of business on the regular record date for such
interest.
Unless
otherwise indicated in the applicable prospectus supplement, principal of and
any premium and interest on the Debt Securities of a particular series will be
payable at the office of the Paying Agent or Paying Agents as we may designate
for such purpose from time to time, except that at our option payment of any
interest on Debt Securities in certificated form may be made by check mailed to
the address of the Person entitled thereto as such address appears in the Debt
Securities’ register. Unless otherwise indicated in the applicable prospectus
supplement, the corporate trust office of the Trustee under the Senior Indenture
in the City of New York will be designated as sole Paying Agent for payments
with respect to Senior Debt Securities of each series, and the corporate trust
office of the Trustee under the Subordinated Indenture in the City of New York
will be designated as the sole Paying Agent for payment with respect to
Subordinated Debt Securities of each series. Any other Paying Agents initially
designated by us for the Debt Securities of a particular series will be named in
the applicable prospectus supplement. We may at any time designate additional
Paying Agents or rescind the designation of any Paying Agent or approve a change
in the office through which any Paying Agent acts, except that we will be
required to maintain a Paying Agent in each Place of Payment for the Debt
Securities of a particular series.
All money
paid by us to a Paying Agent for the payment of the principal of or any premium
or interest on any Debt Security that remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be
repaid to us, and the Holder of such Debt Security thereafter may look only to
us for payment.
Consolidation,
Merger and Sale of Assets
Unless
otherwise specified in the prospectus supplement, we may not consolidate with or
merge into, or transfer, lease or otherwise dispose of all or substantially all
of our assets to, any Person (a “successor Person”), and may not permit any
Person to consolidate with or merge into us, unless:
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(1)
|
the
successor Person (if not us) is a corporation, partnership, trust or other
entity organized and validly existing under the laws of any domestic
jurisdiction and assumes our obligations on the Debt Securities and under
the Indentures;
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|
(2)
|
immediately
before and after giving pro forma effect to 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;
and
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|
(3)
|
several
other conditions, including any additional conditions with respect to any
particular Debt Securities specified in the applicable prospectus
supplement, are met.
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The
successor Person (if not us) will be substituted for us under the applicable
Indenture with the same effect as if it had been an original party to such
Indenture, and, except in the case of a lease, we will be relieved from any
further obligations under such Indenture and the Debt Securities.
Satisfaction
and Discharge
Each
indenture will be discharged and will cease to be of further effect as to all
Outstanding Debt Securities of any series issued thereunder (except for certain
surviving rights and obligations), when:
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(a)
|
all
Outstanding Debt Securities of that series that have been authenticated
(except lost, stolen or destroyed Debt Securities that have been replaced
or paid and Debt Securities for whose payment money has theretofore been
deposited in trust and thereafter repaid to us) have been delivered to the
Trustee for cancellation; or
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|
(b)
|
all
Outstanding Debt Securities of that series that have not been delivered to
the Trustee for cancellation have become due and payable or 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 Trustee, and in any case we have deposited with the Trustee as trust
funds in an amount sufficient to pay the entire indebtedness of such Debt
Securities not delivered to the Trustee for cancellation, for principal
and any premium and interest to the date of deposit or to the Stated
Maturity or redemption date, as the case may
be.
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|
(2)
|
we
have paid or caused to be paid all other sums payable by us under the
applicable indenture with respect to the Debt Securities of that series;
and
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|
(3)
|
we
have delivered an Officer’s Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to the satisfaction and
discharge of the applicable indenture with respect to the Debt Securities
of that series have been complied
with.
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Defeasance
and Covenant Defeasance
If the
provisions in the applicable indenture relating to defeasance and covenant
defeasance are made applicable to the Debt Securities of any series, we may
elect either:
|
(1)
|
defeasance,
which means we elect to defease and be discharged from any and all
obligations with respect to the Debt Securities, except for the
obligations to register the transfer or exchange of the Debt Securities,
to replace temporary or mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt
Securities and to hold moneys for payment in trust;
or
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|
(2)
|
covenant
defeasance, which means we elect to be released from our obligations with
respect to the Debt Securities under specified sections of the applicable
indenture relating to covenants, as described in the applicable prospectus
supplement and any omission to comply with our obligations will not
constitute an Event of Default with respect to the Debt
Securities;
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in either
case upon the irrevocable deposit by us with the applicable Trustee, in trust,
of an amount, in currency or currencies or US Government Obligations, or both,
sufficient without reinvestment to make scheduled payments of the principal of,
and premium, if any, and interest on the Debt Securities, when due, whether at
maturity, upon redemption or otherwise, and any mandatory sinking fund or
analogous payments.
A trust
will only be permitted to be established if, among other things:
|
(1)
|
we
have delivered to the applicable Trustee an Opinion of Counsel, as
specified in the applicable indenture, to the effect that the Holders of
the Debt Securities will not recognize gain or loss for federal income tax
purposes as a result of the defeasance or covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if the defeasance or
covenant defeasance had not occurred, and the Opinion of Counsel, in the
case of defeasance, will be required to refer to and be based upon a
ruling of the Internal Revenue Service or a change in applicable U.S.
Federal income tax law occurring after the date of the applicable
indenture;
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(2)
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no
Event of Default or any event which after notice or lapse of time or both
would be an Event of Default has
occurred;
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(3)
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the
deposit will not result in a breach or violation of, or constitute a
default under, any material agreement or instrument to which we are a
party or by which we are bound;
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(4)
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certain
other provisions set forth in the applicable indenture are met;
and
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(5)
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we
will have delivered to the Trustee an Officer’s Certificate and an Opinion
of Counsel, each stating that all conditions precedent to the defeasance
or covenant defeasance have been complied
with.
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In
general, if we elect covenant defeasance with respect to any Debt Securities and
payments on those Debt Securities are declared due and payable because of the
occurrence of an Event of Default , the amount of money and U.S. Government
Obligations on deposit with the applicable Trustee would be sufficient to pay
amounts due on those Debt Securities at the time of their Stated Maturity, but
may not be sufficient to pay amounts due on those Debt Securities at the time of
the acceleration resulting from the Event of Default. In that case, we would
remain liable to make payment of the amounts due on the Debt Securities at the
time of acceleration.
The
applicable prospectus supplement may further describe the provisions, if any,
permitting defeasance or covenant defeasance, including any modifications to the
provisions described above, with respect to the Debt Securities of or within a
particular series.
Governing
Law
The
indentures and the Debt Securities will be governed by, and construed in
accordance with, the law of the State of New York, except to the extent that the
Trust Indenture Act of 1939 is applicable.
The
Trustee
We will
enter into the Indentures with a Trustee that is qualified to act under the
Trust Indenture Act of 1939, as amended, and with any other Trustees chosen by
us and appointed in a supplemental indenture for a particular series of Debt
Securities. We may maintain a banking relationship in the ordinary course of
business with our Trustee and one or more of its affiliates.
DESCRIPTION
OF CAPITAL STOCK
The
following description of our common stock, preferred stock, certificate of
incorporation, by-laws and rights agreement is a summary only and is subject to
the complete text of our certificate of incorporation and by-laws and the rights
agreement we have entered into with American Stock Transfer & Trust Company,
as rights agent, which we have previously filed with the SEC. You should read
our certificate of incorporation, by-laws and rights agreement as currently in
effect for more details regarding the provisions we describe below and for other
provisions that may be important to you. You may request copies of these
documents by writing or telephoning us at our address and telephone number shown
under the caption “Where You Can Find More Information.” This section also
summarizes relevant provisions of the Delaware General Corporation Law. The
terms of the Delaware General Corporation Law are more detailed than the general
information provided below. Therefore, you should carefully consider the actual
provisions of these laws.
Our
authorized capital stock currently consists of 125,000,000 shares of common
stock, par value $0.00001 per share, and 5,000,000 shares of preferred stock,
par value $0.00001 per share. As of the date of this prospectus, there are
approximately 80,046,000 shares of common stock issued and outstanding and
approximately 195 stockholders of record of our common stock. No shares of
preferred stock are currently outstanding.
Common
Stock
The
holders of our common stock are entitled to one vote per share on all matters to
be voted on by stockholders generally, including the election of directors.
There are no cumulative voting rights, meaning that the holders of a majority of
the shares voting for the election of directors can elect all of the candidates
standing for election.
Our
common stock carries no preemptive or other subscription rights to purchase
shares of our stock and is not convertible, redeemable or assessable or entitled
to the benefits of any sinking fund. Holders of our common stock will be
entitled to receive such dividends as may from time to time be declared by our
board of directors out of funds legally available for the payment of dividends.
If we issue preferred stock in the future, payment of dividends to holders of
our common stock may be subject to the rights of holders of our preferred stock
with respect to payment of preferential dividends, if any.
If we are
liquidated, dissolved or wound up, the holders of our common stock will share
pro rata in our assets after satisfaction of all of our liabilities and the
prior rights of any outstanding class of our preferred stock.
Our
common stock is listed on the NYSE Amex exchange under the trading symbol
“WEL.”
Preferred
Stock
Our board
of directors has the authority, without stockholder approval, to issue up to
five million shares of preferred stock in one or more series and to fix the
rights, preferences, privileges and restrictions thereof, including dividend
rights, dividend rates, conversion rates, voting rights, terms of redemption,
redemption prices, liquidation preferences and the number of shares constituting
any series or the designation of that series, which may be superior to those of
the common stock, without further vote or action by the stockholders. One of the
effects of undesignated preferred stock may be to enable our board of directors
to render more difficult or to discourage an attempt to obtain control of us by
means of a tender offer, proxy contest, merger or otherwise, and as a result to
protect the continuity of our management. The issuance of shares of the
preferred stock by the board of directors as described above may adversely
affect the rights of the holders of common stock. For example, preferred stock
issued by us may rank superior to the common stock as to dividend rights,
liquidation preference or both, may have full or limited voting rights and may
be convertible into shares of common stock. Accordingly, the issuance of shares
of preferred stock may discourage bids for our common stock or may otherwise
adversely affect the market price of our common stock.
Our board
of directors will fix the rights, preferences, privileges, qualifications and
restrictions of the preferred stock of each series that we sell under this
prospectus and applicable prospectus supplements in the certificate of
designation relating to that series. We will incorporate by reference
into the registration statement of which this prospectus is a part the form of
any certificate of designation that describes the terms of the series of
preferred stock we are offering before the issuance of the related series of
preferred stock. This description may include:
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the
title and stated value;
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the
number of shares we are offering;
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the
liquidation preference per share;
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the
purchase price per share;
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the
dividend rate per share, dividend period and payment dates and method of
calculation for dividends;
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the
date from which dividends will
accumulate;
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our
right, if any, to defer payment of dividends and the maximum length of any
such deferral period;
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the
procedures for any auction and remarketing, if
any;
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the
provisions for a sinking fund, if
any;
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the
provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and repurchase
rights;
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any
listing of the preferred stock on any securities exchange or
market;
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whether
the preferred stock will be convertible into our common stock or other
securities of ours, including warrants, and, if applicable, the conversion
period and the conversion price or how the conversion price will be
calculated, and under what circumstances it may be
adjusted;
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whether
the preferred stock will be exchangeable into debt securities, and, if
applicable, the exchange period and the exchange price or how the exchange
price will be calculated, and under what circumstances it may be
adjusted;
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voting
rights, if any, of the preferred
stock;
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preemption
rights, if any;
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restrictions
on transfer, sale or other assignment, if
any;
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a
discussion of any material or special U.S. federal income tax
considerations applicable to the preferred
stock;
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the
relative ranking and preferences of the preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our
affairs;
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any
limitations on issuances of any class or series of preferred stock ranking
senior to or on a parity with the series of preferred stock being issued
as to dividend rights and rights if we liquidate, dissolve or wind up our
affairs; and
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any
other specific terms, rights, preferences, privileges, qualifications or
restrictions of the preferred
stock.
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When we
issue shares of preferred stock under this prospectus, the shares will be fully
paid and nonassessable and will not have, or be subject to, any rights of first
refusal or similar rights.
The
Delaware General Corporation Law provides that the holders of preferred stock
will have the right to vote separately as a class on any proposal involving
fundamental changes in the rights of holders of that preferred
stock. This right is in addition to any voting rights that may be
provided for in the applicable certificate of designation.
For
purposes of the rights plan described below, our board of directors has
designated 1,000,000 shares of preferred stock to constitute Series I Junior
Participating Preferred Stock. For a description of the rights plan, please read
“—Stockholder Rights Plan.”
Authorized
but Unissued Stock
We have
125,000,000 authorized shares of common stock and 5,000,000 authorized shares of
preferred stock of which approximately 80,046,000 shares of common stock and no
shares of preferred stock were outstanding as of the date of this prospectus.
One of the consequences of our authorized but unissued common stock and
preferred stock may be to enable our board of directors to make more difficult
or to discourage an attempt to obtain control of us. If, in the exercise of its
fiduciary obligations, our board of directors determined that a takeover
proposal was not in our best interest, the board could authorize the issuance of
those shares without stockholder approval. The shares could be issued in one or
more transactions that might prevent or make the completion of the change of
control transaction more difficult or costly by:
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diluting
the voting or other rights of the proposed acquiror or insurgent
stockholder group;
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creating
a substantial voting block in institutional or other hands that might
undertake to support the position of the incumbent board;
or
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effecting
an acquisition that might complicate or preclude the
takeover.
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Stockholder
Action by Written Consent; Special Meetings of Stockholders
Our
certificate of incorporation does not prohibit action by written consent of
stockholders in lieu of a meeting. Special meetings of stockholders may be
called only by the board of directors, the chairman of the board, or the
president.
Amendment
of the By-laws
Under
Delaware law, the power to adopt, amend or repeal by-laws is conferred upon the
stockholders entitled to vote. A corporation may, however, in its certificate of
incorporation also confer upon the board of directors the power to adopt, amend
or repeal its by-laws. Our certificate of incorporation and by-laws grant our
board of directors the power to alter and repeal our by-laws at any regular or
special meeting of the board on the affirmative vote of a majority of the
directors then in office. Our stockholders may also alter or repeal our by-laws
by the affirmative vote of not less than 66% of the stockholders entitled to
vote.
Removal
of Directors
Directors
may be removed with cause by a vote of at least 66% of the voting power of our
outstanding voting stock. A vacancy on our board of directors may be filled by a
vote of a majority of the directors in office even if less than a quorum. A
director elected to fill a vacancy not resulting from an increase in the number
of directors serves for the remaining term of his predecessor or his earlier
death, resignation or removal.
Advance
Notice Procedure for Director Nominations and Stockholder Proposals
Our
certificate of incorporation and by-laws provide the manner in which
stockholders may give notice of business to be brought before an annual meeting.
In order for an item to be properly brought before the meeting by a stockholder,
the stockholder must be a holder of record at the time of the giving of notice
and must be entitled to vote at the annual meeting. The item to be brought
before the meeting must be a proper subject for stockholder action, and the
stockholder must have given timely advance written notice of the item. For
notice to be timely, it must be delivered to, or mailed and received at, our
principal executive office not less than 60 days nor more than 90 days prior to
the date of the meeting; provided, however, that in the event that less than 70
days notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be received
not later than the close of business on the 10th day following the day on which
such notice of the meeting was mailed or public disclosure was
made.
The
notice must set forth, as to each item to be brought before the annual meeting,
a description of the proposal and the reasons for conducting such business at
the annual meeting, the name and address, as they appear on our books, of the
stockholder proposing the item, the number of shares of each class or series of
capital stock beneficially owned by the stockholder, and any material interest
of the stockholder in the proposal. A notice with regards to stockholder
nominations for the election of directors must contain the name, age, business
address and residence of the director nominee, the principal occupation or
employment of the director nominee, the number of shares of each class or series
of capital stock beneficially owned by the director nominee, and any other
information relating to the director nominee that is required to be disclosed in
solicitations of proxies for the election of directors or is otherwise required
by Regulation 14A of the Securities Exchange Act of 1934, as
amended.
These
procedures may limit the ability of stockholders to bring business before a
stockholders meeting, including the nomination of directors and the
consideration of any transaction that could result in a change in control and
that may result in a premium to our stockholders.
Stockholder
Rights Plan
General
On
November 27, 2001, our board of directors issued a dividend of one preferred
share purchase right (a “Right”) for each outstanding share of our common stock
held of record on that date and approved the further issuance of Rights with
respect to all shares of our common stock that are subsequently issued. The
Rights were issued subject to a Rights Agreement dated as of November 17, 2001
between us and American Stock Transfer & Trust Company, as rights agent.
Each Right entitles the registered holder to purchase from us one one-hundredth
of a share of Series I Junior Participating Preferred Stock, par value $0.00001
(“Series I Stock”), at a price of $5.00 in cash, subject to adjustment. Until
the occurrence of certain events described below, the Rights are not
exercisable, will be evidenced by the certificates for our common stock and will
not be transferable apart from our common stock.
Detachment
of Rights; Exercise
The
Rights are currently attached to all certificates representing outstanding
shares of our common stock and no separate Right certificates have been
distributed. The Rights will separate from our common stock and a distribution
date (“Distribution Date”) will occur upon the earlier of (1) 10 business days
following the public announcement that a person or group of affiliated or
associated persons (an “Acquiring Person”) has acquired beneficial ownership of
15% or more of our outstanding common stock or (2) 10 business days following
the commencement or announcement of an intention to commence a tender offer or
exchange offer, the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of our outstanding common
stock.
The
Rights are not exercisable until the Distribution Date. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
will be mailed to holders of record of our common stock as of the close of
business on the Distribution Date and such separate certificates alone will
thereafter evidence the Rights.
If a
person or group were to acquire 15% or more of our common stock, each Right then
outstanding (other than Rights beneficially owned by the Acquiring Person which
would become null and void) would become a right to buy that number of shares of
our common stock (or, under certain circumstances, the equivalent number of one
one-hundredth of a share of Series I Stock) that at the time of such acquisition
would have a market value of two times the Purchase Price of the
Right.
If we
were acquired in a merger or other business combination transaction or more than
50% of our consolidated assets or earning power were sold, proper provision
would be made so that each holder of a Right would thereafter have the right to
receive, upon the exercise thereof at the then current Purchase Price of the
Right, that number of shares of common stock of the acquiring company which at
the time of such transaction would have a market value of two times the Purchase
Price of the Right.
Antidilution
and Other Adjustments
The
number of shares (or fractions thereof) of Series I Stock or other securities or
property issuable upon exercise of the Rights, and the Purchase Price payable,
are subject to customary adjustments from time to time to prevent dilution. The
number of outstanding Rights and the number of shares (or fractions thereof) of
Series I Stock issuable upon exercise of each Right are also subject to
adjustment in the event of a stock dividend on our common stock payable in our
common stock or any subdivision or combination of our common stock occurring, in
any such case, prior to the Distribution Date.
Exchange
Option
At any
time after the acquisition by a person or group of affiliated or associated
persons of beneficial ownership of 15% or more of our outstanding common stock
and before the acquisition by a person or group of 50% or more of our
outstanding common stock, our board of directors may, at its option, issue our
common stock in mandatory redemption of, and in exchange for, all or part of the
then outstanding and exercisable Rights (other than Rights owned by such person
or group which would become null and void) at an exchange ratio of one share of
our common stock (or one one-hundredth of a share of Series I Stock) for each
share of our common stock for which each Right is then exercisable, subject to
appropriate adjustment.
Redemption
of Rights
At any
time prior to the first public announcement that a person or group has become
the beneficial owner of 15% or more of our outstanding common stock, our board
of directors may redeem all but not less than all of the then outstanding rights
at a price of $0.001 per Right (the “Redemption Price”). The redemption of the
Rights may be made effective at such time, on such basis and with such
conditions as our board of directors in its sole discretion may establish.
Immediately upon the action of the board of directors ordering redemption of the
Rights, the right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
Expiration;
Amendment of Rights
The
Rights will expire on December 31, 2011, unless earlier extended, redeemed or
exchanged. The terms of the Rights may be amended by our board of directors
without the consent of the holders of the Rights, including an amendment to
extend the expiration date of the Rights, and, provided a Distribution Date has
not occurred, to extend the period during which the Rights may be redeemed,
except that after the first public announcement that a person or group has
become or intends to become the beneficial owner of 15% or more of our
outstanding common stock, no such amendment may materially and adversely affect
the interests of holders of the Rights.
The
Rights have certain anti-takeover effects. The Rights will cause substantial
dilution to a person or group that attempts to acquire us without the approval
of our board of directors. The Rights should not, however, interfere with any
merger or other business combination that is approved by our board of
directors.
Limitation
of Liability of Officers and Directors
Our
directors will not be personally liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director, except, if required by
Delaware law, for liability:
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for
any breach of the duty of loyalty to us or our
stockholders;
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for
an act or omission not in good faith that constitutes a breach of duty of
the director to us or involving intentional misconduct or a knowing
violation of law;
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for
any transaction from which the director derived an improper personal
benefit;
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under
Section 174 of the Delaware General Corporation Law relating to unlawful
stock repurchases or dividends; and
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an
act or omission for which the liability of a director is expressly
provided for by an applicable
statute.
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As a
result, neither we nor our stockholders, through stockholders’ derivative suits
on our behalf, have the right to recover monetary damages against a director for
breach of fiduciary duty as a director, including breaches resulting from
grossly negligent behavior, except in the situations described
above.
Indemnification
Agreements
We have
entered into indemnification agreements with our directors and officers that
may, in some cases, be broader than the specific indemnification provisions
contained in our certificate of incorporation, bylaws or the Delaware General
Corporation Law. The indemnification agreements require us, among
other things, to indemnify our officers and directors against certain
liabilities, other than liabilities arising from willful misconduct, that may
arise by reason of their status or service as directors or officers. We believe
that these indemnification arrangements are necessary to attract and retain
qualified individuals to serve as directors and officers.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling us pursuant to the
foregoing provisions, we have been informed 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.
Delaware
Anti-Takeover Law and Certain Charter and Bylaw Provisions
Our
certificate of incorporation, bylaws and the Delaware General Corporation Law
contain certain provisions that could discourage potential takeover attempts and
make it more difficult for stockholders to change management or receive a
premium for their shares.
Delaware law
. We
are subject to Section 203 of the Delaware General Corporation Law, an
anti-takeover law. In general, the statute prohibits a publicly-held Delaware
corporation from engaging in a business combination with an “interested
stockholder” for a period of three years after the date of the transaction in
which the person became an interested stockholder. A “business combination”
includes a merger, sale of 10% or more of our assets and certain other
transactions resulting in a financial benefit to the stockholder. For purposes
of Section 203, an “interested stockholder” is defined to include any person
that is:
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the
owner of 15% or more of the outstanding voting stock of the
corporation;
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an
affiliate or associate of the corporation and was the owner of 15% or more
of the voting stock outstanding of the corporation, at any time within
three years immediately prior to the relevant date;
and
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an
affiliate or associate of the persons described in the foregoing bullet
points.
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However,
the above provisions of Section 203 do not apply if:
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the
board of directors approves the transaction that made the stockholder an
interested stockholder prior to the date of that
transaction;
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after
completion of the transaction that resulted in the stockholder becoming an
interested stockholder, that stockholder owned at least 85% of our voting
stock outstanding at the time the transaction commenced, excluding shares
owned by our officers and directors;
or
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on
or subsequent to the date of the transaction, the business combination is
approved by our board of directors and authorized at a meeting of our
stockholders by an affirmative vote of at least two-thirds of the
outstanding voting stock not owned by the interested
stockholder.
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Stockholders
may, by adopting an amendment to the corporation’s certificate of incorporation
or bylaws, elect for the corporation not to be governed by Section 203,
effective 12 months after adoption. Neither our certificate of incorporation nor
our bylaws exempt us from the restrictions imposed under Section 203. It is
anticipated that the provisions of Section 203 may encourage companies
interested in acquiring us to negotiate in advance with our board.
Charter and bylaw provisions
.
Delaware law permits any Delaware corporation to classify its board of directors
into as many as three (3) classes as equally as possible with staggered terms of
office. After initial implementation of a classified board, one class will be
elected at each annual meeting of the stockholders to serve for a term of one,
two or three years (depending upon the number of classes into which directors
are classified) or until their successors are elected and take office. Our
certificate of incorporation and bylaws provide for a classified board of
directors by dividing the board into three (3) classes, with no class having
more than one director more than any other class. The stockholders of a Delaware
corporation with a classified board of directors may remove a director only “for
cause” unless the company’s certificate of incorporation provides otherwise. Our
bylaws restrict the removal of a director except “for cause.”
Transfer
Agent and Registrar
Our
Transfer Agent and Registrar for our common stock is American Stock Transfer
& Trust Company. Its phone number (800) 937-5449.
DESCRIPTION
OF DEPOSITARY SHARES
We may,
at our option, elect to offer fractional shares of preferred stock, rather than
full shares of preferred stock. If we do, we will issue to the public receipts
for depositary shares, and each of these depositary shares will represent a
fraction of a share of a particular series of preferred stock.
Description
of Depositary Shares
The
shares of any series of preferred stock underlying the depositary shares will be
deposited under a deposit agreement between us and a bank or trust company
selected by us to be the depositary. Subject to the terms of the deposit
agreement, each owner of a depositary share will be entitled, in proportion to
the applicable fractional interest in shares of preferred stock underlying that
depositary share, to all the rights and preferences of the preferred stock
underlying that depositary share.
The
depositary shares will be evidenced by depositary receipts issued pursuant to
the deposit agreement. Depositary receipts will be issued to those persons who
purchase the fractional interests in the preferred stock underlying the
depositary shares, in accordance with the terms of the offering. The following
summary of the deposit agreement, the depositary shares and the depositary
receipts is not complete. You should refer to the forms of the deposit agreement
and depositary receipts that may be filed as exhibits to the registration
statement in the event we issue depositary shares.
Dividends
and Other Distributions
The
depositary will distribute all cash dividends or other cash distributions
received in respect of the preferred stock to the record holders of depositary
shares relating to that preferred stock in proportion to the number of
depositary shares owned by those holders.
If there
is a distribution other than in cash, the depositary will distribute property
received by it to the record holders of depositary shares that are entitled to
receive the distribution, unless the depositary determines that it is not
feasible to make the distribution. If this occurs, the depositary may, with our
approval, sell the property and distribute the net proceeds from the sale to the
applicable holders.
Redemption
of Depositary Shares
If a
series of preferred stock underlying the depositary shares is subject to
redemption, the depositary shares will be redeemed from the proceeds received by
the depositary resulting from the redemption, in whole or in part, of that
series of preferred stock held by the depositary. The redemption price per
depositary share will be equal to the applicable fraction of the redemption
price per share payable with respect to that series of the preferred stock.
Whenever we redeem shares of preferred stock that are held by the depositary,
the depositary will redeem, as of the same redemption date, the number of
depositary shares representing the shares of preferred stock so redeemed. If
fewer than all the depositary shares are to be redeemed, the depositary shares
to be redeemed will be selected by lot or pro rata as determined by the
depositary.
After the
date fixed for redemption, the depositary shares called for redemption will no
longer be outstanding, and all rights of the holders of those depositary shares
will cease, except the right to receive any money, securities, or other property
upon surrender to the depositary of the depositary receipts evidencing those
depositary shares.
Voting
the Preferred Stock
Upon
receipt of notice of any meeting at which the holders of preferred stock are
entitled to vote, the depositary will mail the information contained in the
notice of meeting to the record holders of the depositary shares underlying that
preferred stock. Each record holder of those depositary shares on the record
date (which will be the same date as the record date for the preferred stock)
will be entitled to instruct the depositary as to the exercise of the voting
rights pertaining to the amount of the preferred stock underlying that holder’s
depositary shares. The depositary will try, as far as practicable, to vote the
number of shares of preferred stock underlying those depositary shares in
accordance with such instructions, and we will agree to take all action which
may be deemed necessary by the depositary in order to enable the depositary to
do so. The depositary will not vote the shares of preferred stock to the extent
it does not receive specific instructions from the holders of depositary shares
underlying the preferred stock.
Amendment
and Termination of the Depositary Agreement
The form
of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement may be amended at any time by agreement between us and the
depositary. However, any amendment that materially and adversely alters the
rights of the holders of depositary shares will not be effective unless the
amendment has been approved by the holders of at least a majority of the
depositary shares then outstanding. The deposit agreement may be terminated by
us or by the depositary only if (i) all outstanding depositary shares have been
redeemed or (ii) there has been a final distribution of the underlying preferred
stock in connection with our liquidation, dissolution or winding up and the
preferred stock has been distributed to the holders of depositary
receipts.
Charges
of Bank Depositary
We will
pay all transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangements. We will pay charges of the bank
depositary in connection with the initial deposit of the preferred stock and any
redemption of the preferred stock. Holders of depositary shares will pay other
transfer and other taxes and governmental charges and any other charges,
including a fee for the withdrawal of shares of preferred stock upon surrender
of depositary receipts, as are expressly provided in the depositary agreement to
be payable by such holders.
Withdrawal of Preferred
Stock
Except as
may be provided otherwise in the applicable prospectus supplement, upon
surrender of depositary receipts at the principal office of the bank depositary,
subject to the terms of the depositary agreement, the owner of the depositary
shares may demand delivery of the number of whole shares of preferred stock and
all money and other property, if any, represented by those depositary shares.
Partial shares of preferred stock will not be issued. If the depositary receipts
delivered by the holder evidence a number of depositary shares in excess of the
number of depositary shares representing the number of whole shares of preferred
stock to be withdrawn, the bank depositary will deliver to such holder at the
same time a new depositary receipt evidencing the excess number of depositary
shares. Holders of preferred stock thus withdrawn may not thereafter deposit
those shares under the depositary agreement or receive depositary receipts
evidencing depositary shares therefor.
Resignation
and Removal of Depositary
The
depositary may resign at any time by delivering a notice to us of its election
to do so. We may remove the depositary at any time. Any such resignation or
removal will take effect upon the appointment of a successor depositary and its
acceptance of its appointment. The successor depositary must be appointed within
60 days after delivery of the notice of resignation or removal.
Miscellaneous
The
depositary will forward to holders of depository receipts all reports and
communications from us that we deliver to the depositary and that we are
required to furnish to the holders of the preferred stock.
Neither
we nor the depositary will be liable if either of us is prevented or delayed by
law or any circumstance beyond our control in performing our respective
obligations under the deposit agreement. Our obligations and those of the
depositary will be limited to the performance in good faith of our respective
duties under the deposit agreement. Neither we nor the depositary will be
obligated to prosecute or defend any legal proceeding in respect of any
depositary shares or preferred stock unless satisfactory indemnity is furnished.
We and the depositary may rely upon written advice of counsel or accountants, or
upon information provided by persons presenting preferred stock for deposit,
holders of depositary receipts or other persons believed to be competent and on
documents believed to be genuine.
DESCRIPTION
OF WARRANTS
We may
issue warrants for the purchase of debt securities, preferred stock or common
stock. We may issue warrants independently or together with other securities. We
will issue each series of warrants under a separate warrant agreement to be
entered into between us and a bank or trust company, as warrant agent. You
should refer to the warrant agreement relating to the specific warrants being
offered for the complete terms of the warrant agreement and the
warrants.
Each
warrant will entitle the holder to purchase the principal amount of debt
securities, or the number of shares of preferred stock or common stock, at the
exercise price set forth in, or calculable as set forth in, the prospectus
supplement.
We will
describe in the applicable prospectus supplement the terms relating to a series
of warrants, which may include:
|
·
|
the
offering price and aggregate number of warrants
offered;
|
|
·
|
the
currency for which the warrants may be
purchased;
|
|
·
|
if
applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security or each principal amount of such
security;
|
|
·
|
if
applicable, the date on and after which the warrants and the related
securities will be separately
transferable;
|
|
·
|
in
the case of warrants to purchase debt securities, the principal amount of
debt securities purchasable upon exercise of one warrant and the price at,
and currency in which, this principal amount of debt securities
may be purchased
upon such exercise;
|
|
·
|
in
the case of warrants to purchase common stock or preferred stock, the
number of shares of common stock or preferred stock, as the case may be,
purchasable upon the exercise of one warrant and the price at which these
shares may be purchased upon such
exercise;
|
|
·
|
the
effect of any merger, consolidation, sale or other disposition of our
business on the warrant agreements and the
warrants;
|
|
·
|
the
terms of any rights to redeem or call the
warrants;
|
|
·
|
any
provisions for changes to or adjustments in the exercise price or number
of securities issuable upon exercise of the
warrants;
|
|
·
|
the
dates on which the right to exercise the warrants will commence and
expire;
|
|
·
|
the
manner in which the warrant agreements and warrants may be
modified;
|
|
·
|
U.S.
federal income tax consequences of holding or exercising the
warrants;
|
|
·
|
the
terms of the securities issuable upon exercise of the warrants;
and
|
|
·
|
any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
|
DESCRIPTION OF UNITS
As
specified in the applicable prospectus supplement, we may issue units consisting
of one or more debt securities, shares of common stock or preferred stock,
warrants or any combination of such securities. In addition, the prospectus
supplement relating to units will describe the terms of any units we issue,
including as applicable:
|
·
|
the
designation and terms of the units and the securities included in the
units;
|
|
·
|
any
provision for the issuance, payment, settlement, transfer or exchange of
the units;
|
|
·
|
the
date, if any, on and after which the units may be transferable
separately;
|
|
·
|
whether
we will apply to have the units traded on a securities exchange or
securities quotation system;
|
|
·
|
any
material United States federal income tax consequences;
and
|
|
·
|
how,
for United States federal income tax purposes, the purchase price paid for
the units is to be allocated among the component
securities.
|
PLAN
OF DISTRIBUTION
We may
sell the securities through underwriters or dealers, through agents, or directly
to one or more purchasers. A prospectus supplement or supplements
will describe the terms of the offering of the securities by us,
including:
|
·
|
the
name or names of any underwriters, if
any;
|
|
·
|
the
purchase price of the securities and the proceeds we will receive from the
sale;
|
|
·
|
any
over-allotment options under which underwriters may purchase additional
securities from us;
|
|
·
|
any
agency fees or underwriting discounts and other items constituting agents’
or underwriters’ compensation;
|
|
·
|
any
public offering price;
|
|
·
|
any
discounts or concessions allowed or reallowed or paid to dealers;
and
|
|
·
|
any
securities exchange or market on which the securities may be
listed.
|
Only
underwriters named in the prospectus supplement are underwriters of the
securities offered by the prospectus supplement.
If
underwriters are used in the sale, they will acquire the securities for their
own account and may resell the securities from time to time in one or more
transactions at a fixed public offering price or at varying prices determined at
the time of sale. The obligations of the underwriters to purchase the
securities will be subject to the conditions set forth in the applicable
underwriting agreement. We may offer the securities to the public
through underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions, the
underwriters will be obligated to purchase all of the securities offered by the
prospectus supplement. Any public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may change from time to
time. We may use underwriters with whom we have a material
relationship. We will describe in the prospectus supplement, naming
the underwriter, the nature of any such relationship.
We may
sell securities directly or through agents we designate from time to
time. We will name any agent involved in the offering and sale of
securities and we will describe any commissions we will pay the agent in the
prospectus supplement. Unless the prospectus supplement states
otherwise, our agent will act on a best-efforts basis for the period of its
appointment.
We may
authorize agents or underwriters to solicit offers by certain types of
institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the
future. We will describe the conditions to these contracts and the
commissions we must pay for solicitation of these contracts in the prospectus
supplement.
We may
provide agents and underwriters with indemnification against civil liabilities
related to an offering, including liabilities under the Securities Act, or
contribution with respect to payments that the agents or underwriters may make
with respect to these liabilities. Agents and underwriters may engage
in transactions with, or perform services for, us in the ordinary course of
business.
All
securities we offer, other than common stock, will be new issues of securities
with no established trading market. Any underwriters may make a
market in these securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot
guarantee the liquidity of the trading markets for any securities.
Any
underwriter may engage in overallotment, stabilizing transactions, short
covering transactions and penalty bids in accordance with Regulation M under the
Exchange Act. Overallotment involves sales in excess of the offering
size, which create a short position. Stabilizing transactions permit
bids to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. Short covering transactions involve
purchases of the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering transaction to cover
short positions. Those activities may cause the price of the
securities to be higher than it would otherwise be. If commenced, the
underwriters may discontinue any of these activities at any time.
Pursuant
to a requirement by the Financial Industry Regulatory Authority (“FINRA”), the
maximum commission or discount to be received by any FINRA member or independent
broker/dealer may not be greater than eight percent (8%) of the gross proceeds
received by us for the sale of any securities being registered pursuant to SEC
Rule 415 under the Securities Act of 1933.
If more
than 10% of the net proceeds of any offering of securities made under this
prospectus will be received by FINRA members participating in the offering or
affiliates or associated persons of such FINRA members, the offering will be
conducted in accordance with NASD Conduct Rule 5110(h).
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the
securities offered under this prospectus will be passed upon for us by Thompson
& Knight LLP. Additional legal matters may be passed on for us, or any
underwriters, dealers or agents, by counsel we will name in the applicable
prospectus supplement.
EXPERTS
Our
consolidated financial statements as of December 31, 2008 and 2007, and for each
of the three years in the period ended December 31, 2008, and the effectiveness
of the Company’s internal control over financial reporting as of December 31,
2008 appearing in our Annual Report on Form 10-K for the year ended December 31,
2008, have been so incorporated in reliance upon the reports of UHY LLP,
independent registered public accounting firm, given on the authority of such
firm as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution.
The
expenses of this offering (all of which are to be paid by the registrant) are
estimated to be as follows:
SEC
Registration Fee
|
|
$
|
13,950
|
|
FINRA
Filing Fee
|
|
|
25,500
|
|
Fees
and Expenses of Legal Counsel
|
|
|
15,000
|
|
Accounting
Fees and Expenses
|
|
|
15,000
|
|
Trustee
Fees and Expenses
|
|
|
3,000
|
|
Printing
Expenses
|
|
|
5,000
|
|
Miscellaneous
|
|
|
3,000
|
|
Total
|
|
$
|
80,450
|
|
Item 15.
Indemnification of Directors and Officers.
Our
certificate of incorporation contains certain provisions permitted under the
Delaware General Corporation Law (“DGCL”) relating to the liability of
directors. These provisions eliminate a director's personal liability for
monetary damages resulting from a breach of fiduciary duty, except that a
director will be personally liable:
|
·
|
for
any breach of the duty of loyalty to us or our
stockholders;
|
|
·
|
for
an act or omission not in good faith that constitutes a breach of duty of
the director to us or involving intentional misconduct or a knowing
violation of law;
|
|
·
|
for
any transaction from which the director derived an improper personal
benefit;
|
|
·
|
under
Section 174 of the DGCL relating to unlawful stock repurchases or
dividends; and
|
|
·
|
an
act or omission for which the liability of a director is expressly
provided for by an applicable
statute.
|
These
provisions do not limit or eliminate our rights or those of any stockholder to
seek nonmonetary relief, such as an injunction or rescission, in the event of a
breach of a director's fiduciary duty. These provisions will not alter a
director's liability under federal securities laws.
Our
certificate of incorporation and bylaws also provide that we must indemnify our
directors and officers to the fullest extent permitted by Delaware law and also
provide that we must advance expenses, as incurred, to our directors and
officers in connection with a legal proceeding to the fullest extent permitted
by Delaware law, subject to very limited exceptions.
Section
145 of the DGCL, inter alia, authorizes a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, other than an action by or in
the right of the corporation, because such person is or was a director, officer,
employee or agent of the corporation or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
other enterprise, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reason to believe his conduct was unlawful. Similar indemnity is authorized for
such persons against expenses, including attorneys' fees, actually and
reasonably incurred in defense or settlement of any such pending, completed or
threatened action or suit by or in the right of the corporation if such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and provided further that,
unless a court of competent jurisdiction otherwise provides, such person shall
not have been adjudged liable to the corporation. Any such indemnification may
be made only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct.
Section
145 further authorizes a corporation to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him. We maintain policies insuring
our and our subsidiaries' officers and directors against specified liabilities
for actions taken in such capacities, including liabilities under the Securities
Act of 1933.
We have
entered into separate indemnification agreements with our directors and officers
that may, in some cases, be broader than the specific indemnification provisions
contained in our certificate of incorporation, bylaws or the DGCL. The
indemnification agreements may require us, among other things, to indemnify our
officers and directors against certain liabilities, other than liabilities
arising from willful misconduct, that may arise by reason of their status or
service as directors or officers. We believe that these indemnification
arrangements are necessary to attract and retain qualified individuals to serve
as directors and officers.
Item 16.
Exhibits.
The
following documents are filed as exhibits to this registration
statement:
Exhibit
Number
|
|
Description
|
|
1.1**
|
|
Form
of Underwriting Agreement.
|
4.1*
|
|
Form
of Senior Indenture.
|
4.2*
|
|
Form
of Subordinated Indenture.
|
4.3**
|
|
Form
of Warrant Agreement.
|
4.4**
|
|
Form
of Certificate of Designations for Preferred Stock.
|
5.1*
|
|
Opinion
of Thompson & Knight LLP regarding the common stock, preferred stock,
debt securities and warrants.
|
12.1*
|
|
Computation
of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed
Charges and Preferred Stock Dividends.
|
23.1*
|
|
Consent
of UHY LLP.
|
23.2*
|
|
Consent
of Thompson & Knight LLP (included in its opinion dated as Exhibit 5.1
hereto).
|
24.1*
|
|
Power
of Attorney (included in Part II as a part of the signature page of the
Registration Statement).
|
25.1***
|
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 respecting the Senior Indenture.
|
25.2***
|
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 respecting the Subordinated
Indenture.
|
________________
**
|
To
be filed by amendment or incorporated by reference herein in connection
with the issuance of the securities registered hereby, as
appropriate.
|
***
|
To
be filed in accordance with Section 310(a) of the Trust Indenture Act of
1939, as amended.
|
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 SEC
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; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the SEC by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which the prospectus
relates, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately before such effective
date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(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 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(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 Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by either registrant of
expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) To
file an application for the purpose of determining the eligibility of the
trustee under each of the Senior Indenture and the Subordinated Indenture to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)(2) of the Trust Indenture Act
SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 on Form S-3 to be
signed on its behalf by the undersigned, thereunder duly authorized, in the City
of Houston, State of Texas on November 16, 2009.
|
BOOTS
& COOTS, INC.
|
|
|
By:
|
/s/ Jerry Winchester
|
|
|
|
|
Jerry
Winchester
|
|
|
|
Title:
|
President
and Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
BOOTS
& COOTS SERVICES, L.L.C.
|
|
|
BOOTS
& COOTS SPECIAL SERVICES, INC.
|
|
|
HELL
FIGHTERS, INC.
|
|
|
IWC
ENGINEERING, INC.
|
|
|
BOOTS
& COOTS SERVICES, INC.
|
|
|
ELMAGCO,
INC.
|
|
|
HWC
LIMITED
|
|
|
SNUBCO
USA, INC.
|
|
|
STASSO
HOLDINGS, INC.
|
|
|
STASSCO
PRESSURE CONTROL, LLC
|
|
|
J.W.
WRIGHT, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Jerry Winchester
|
|
|
|
Name:
|
Jerry
Winchester
|
|
|
|
Title:
|
President
and Chief Executive Officer
|
|
POWER
OF ATTORNEY
Each
person whose signature appears below hereby appoints Jerry Winchester, Cary
Baetz, and each of them, each of whom may act without joinder of the other, to
execute in the name of each such person who is then an officer or director of
the company and to file any amendments to this registration statement necessary
or advisable to enable the company to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration of
the securities which are the subject of this registration statement, which
amendments may make such changes in the registration statement as such attorney
may deem appropriate.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date
indicated.
Date
|
Signature/Title
|
|
|
|
|
|
|
|
|
|
|
November 16, 2009
|
By:
|
/s/ Jerry Winchester
|
|
|
|
|
|
Jerry
Winchester
|
|
|
|
|
|
President,
Chief Executive Officer and Director
|
|
|
|
|
|
(Principal
Executive Officer) of
|
|
|
|
|
|
|
Boots
& Coots, Inc.
|
|
|
|
|
|
|
Boots
& Coots Services, L.L.C.
|
|
|
|
|
|
|
Boots
& Coots Special Services, Inc.
|
|
|
|
|
|
|
Hell
Fighters, Inc.
|
|
|
|
|
|
|
IWC
Engineering, Inc.
|
|
|
|
|
|
|
Boots
& Coots Services, Inc.
|
|
|
|
|
|
|
Elmagco,
Inc.
|
|
|
|
|
|
|
HWC
Limited
|
|
|
|
|
|
|
Snubco
USA, Inc.
|
|
|
|
|
|
|
Stasso
Holdings, Inc.
|
|
|
|
|
|
|
Stassco
Pressure Control, LLC
|
|
|
|
|
|
|
J.W.
Wright, Inc.
|
|
|
|
|
|
|
|
|
|
|
November 16, 2009
|
By:
|
/s/ Cary Baetz
|
|
|
|
|
|
Cary
Baetz
|
|
|
|
|
|
Chief
Financial Officer (Principal Financial Officer)
– Boots & Coots, Inc.
|
|
|
|
|
|
|
|
|
|
|
November 16, 2009
|
By:
|
/s/ William Bulcher
|
|
|
|
|
|
William
Bulcher
|
|
|
|
|
|
Vice
President, Controller
|
|
|
|
|
|
(Principal
Accounting Officer) – Boots & Coots, Inc.; Director Stassco
Holdings, Inc.
|
|
|
|
|
|
|
|
|
|
|
November 16, 2009
|
By:
|
/s/ Robert Stevens
Herlin
|
|
|
|
|
|
Robert
Stevens Herlin
|
|
|
|
|
|
Director
– Boots & Coots, Inc.
|
|
|
|
|
|
|
|
|
|
|
November 16, 2009
|
By:
|
/s/ E.J. DiPaolo
|
|
|
|
|
|
E.J.
DiPaolo
|
|
|
|
|
|
Director
– Boots & Coots, Inc.
|
|
|
|
|
|
|
|
|
|
|
November 16, 2009
|
By:
|
/s/ W. Richard Anderson
|
|
|
|
|
|
W.
Richard Anderson
|
|
|
|
|
|
Director
– Boots & Coots, Inc.
|
|
|
|
|
|
|
|
|
|
|
November 16, 2009
|
By:
|
/s/ K. Kirk Krist
|
|
|
|
|
|
K.
Kirk Krist
|
|
|
|
|
|
Director
– Boots & Coots, Inc.
|
|
|
|
|
|
|
|
|
|
|
November 16, 2009
|
By:
|
/s/ Robert G. Croyle
|
|
|
|
|
|
Robert
G. Croyle
|
|
|
|
|
|
Director
– Boots & Coots, Inc.
|
|
|
|
|
|
|
|
|
|
|
November 16, 2009
|
By:
|
/s/ Douglas E. Swanson
|
|
|
|
|
|
Douglas
E. Swanson
|
|
|
|
|
|
Chairman
of the Board – Boots & Coots, Inc.
|
|
|
|
INDEX
TO EXHIBITS
Exhibit
Number
|
|
Description
|
|
1.1**
|
|
Form
of Underwriting Agreement.
|
|
|
Form
of Senior Indenture.
|
|
|
Form
of Subordinated Indenture.
|
4.3**
|
|
Form
of Warrant Agreement.
|
4.4**
|
|
Form
of Certificate of Designations for Preferred Stock.
|
|
|
Opinion
of Thompson & Knight LLP regarding the common stock, preferred stock,
debt securities and warrants.
|
|
|
Computation
of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed
Charges and Preferred Stock Dividends.
|
|
|
Consent
of UHY LLP.
|
23.2*
|
|
Consent
of Thompson & Knight LLP (included in its opinion dated as Exhibit 5.1
hereto).
|
24.1*
|
|
Power
of Attorney (included in Part II as a part of the signature page of the
Registration Statement).
|
25.1***
|
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 respecting the Senior Indenture.
|
25.2***
|
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 respecting the Subordinated Indenture.
|
|
|
|
________________
**
|
To
be filed by amendment or incorporated by reference herein in connection
with the issuance of the securities registered hereby, as
appropriate.
|
***
|
To
be filed in accordance with Section 310(a) of the Trust Indenture Act of
1939, as amended.
|
II-8