EXIDE TECHNOLOGIES
As filed with the Securities and
Exchange Commission on March 30, 2007
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, DC 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXIDE TECHNOLOGIES
(Exact Name of Registrant as
Specified in Its Charter)
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Delaware
(State or other
jurisdiction of
incorporation or organization)
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23-0552730
(I.R.S. employer
identification number)
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13000 Deerfield
Parkway
Building 200
Alpharetta, Georgia
30004
(678) 566-9000
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Barbara A. Hatcher
Executive Vice President and
General Counsel
Exide Technologies
13000 Deerfield
Parkway
Building 200
Alpharetta, Georgia
30004
(678) 566-9000
(Name, address, including zip
code, and telephone number, including area code of agent for
service)
Copies to:
Timothy J. Melton
Edward B. Winslow
Jones Day
77 West Wacker
Chicago, Illinois
60601
(312) 782-3939
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this registration statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box. o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following box. o
CALCULATION OF REGISTRATION
FEE
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount
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Aggregate Offering
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Registration
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Securities to be Registered
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to be Registered
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Price (1)
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Fee
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Common Stock, par value
$0.01 per share
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(2)
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(2)
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Preferred Stock, par value
$0.01 per share
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(2)
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(2)
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Rights
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(2)
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(2)
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Warrants
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(2)
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(2)
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Depositary Shares (3)
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(2)
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(2)
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Purchase Contracts
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(2)
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(2)
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Units (4)
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(2)
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(2)
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Debt Securities
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(2)
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(2)
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Total
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$500,000,000
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$500,000,000(5)
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$15,350
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(1)
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Information as to each class of
securities to be registered is not specified in accordance with
General Instruction II.D. to
Form S-3
under the Securities Act of 1933.
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(2)
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An indeterminate number of the
securities of each identified class is being registered as may
from time to time be offered for sale at indeterminate prices,
with an aggregate public offering price not to exceed
$500,000,000.
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(3)
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Each depositary share will be
issued under a deposit agreement, will represent an interest in
a fractional share or multiple shares of preferred stock and
will be evidenced by a depositary receipt.
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(4)
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Each unit will be issued under a
unit agreement or indenture and will represent an interest in a
combination of any two or more of the securities being
registered hereby or debt obligations of third parties,
including U.S. Treasury securities.
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(5)
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Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(o).
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such day as the Securities
and Exchange Commission, acting pursuant to Section 8(a),
may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement 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.
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SUBJECT
TO COMPLETION, DATED MARCH 30, 2007
PROSPECTUS
Common
Stock
Preferred Stock
Rights
Warrants
Depositary Shares
Purchase Contracts
Units
Debt Securities
$500,000,000
We may offer and sell from time to time, in one or more
offerings, together or separately, any combination of the
securities described in this prospectus. Such securities may be
offered and sold by us in one or more offerings with a total
aggregate principal amount or initial purchase price not to
exceed $500,000,000. This prospectus describes some of the
general terms that may apply to these securities. The specific
terms of any securities to be offered will be described in a
supplement to this prospectus and may be further described in a
post-effective amendment to the registration statement of which
this prospectus is a part, in a supplement to this prospectus or
in any other offering material related to the securities.
We may offer and sell these securities to or through one or more
underwriters, dealers or agents, or directly to purchasers, on a
continuous or delayed basis. Each prospectus supplement will
provide the names of the underwriters, dealers or agents, if
any, and the amount, price and terms of the plan of distribution
relating to the securities to be offered pursuant to such
prospectus supplement, as well as the net proceeds we expect to
receive from such sale.
You should carefully consider the risk factors set forth in
the applicable prospectus supplement and certain of our filings
with the Securities and Exchange Commission, as described under
the section entitled Risk Factors on page 2 of
this prospectus, before making any decision to invest in any of
the securities described in this prospectus.
Shares of our common stock are traded on The NASDAQ Global
Market under the symbol XIDE. On March 29,
2007, the last reported sales price for our common stock was
$8.65 per share.
You should read this prospectus, the applicable prospectus
supplement and the documents incorporated by reference in this
prospectus and any prospectus supplement carefully before you
invest in any of these securities. This prospectus may not be
used to sell securities unless accompanied by a prospectus
supplement.
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of these securities
or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of this prospectus
is ,
2007.
TABLE OF
CONTENTS
You should rely only on the information contained in or
incorporated by reference in this prospectus. We have not
authorized anyone to provide you with additional or different
information from that contained or incorporated by reference in
this prospectus. The information contained in this prospectus is
accurate only as of the date on the front cover of this
prospectus, and any information we have incorporated by
reference in this prospectus is accurate only as of the date of
the document incorporated by reference, regardless of the time
of delivery of this prospectus or the securities offered hereby.
We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted.
As permitted under the rules of the Securities and Exchange
Commission, or SEC, this prospectus incorporates important
business information about Exide Technologies that is contained
in documents that we file with the SEC, but that are not
included in or delivered with this prospectus. You may obtain
copies of these documents, without charge, from the website
maintained by the SEC at www.sec.gov, as well as other sources.
See Where You Can Find Additional Information.
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ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the SEC using a shelf registration
process. Under this shelf process, we may offer and sell from
time to time, in one or more offerings, together or separately,
any combination of the securities described in this prospectus
up to a total aggregate principal amount of $500,000,000.
References in this prospectus to Exide, the
Company, we, us and
our refer to Exide Technologies and its consolidated
subsidiaries.
This prospectus provides you with a general description of the
securities. These summary descriptions are not intended to be
complete descriptions of each security. Each time we offer the
securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering.
The prospectus supplement may also supplement, modify or
supersede other information contained in this prospectus. You
should read both this prospectus and any applicable prospectus
supplement together with the information described below under
the headings Incorporation by Reference and
Where You Can Find Additional Information.
You should rely only on the information contained in or
incorporated by reference in this prospectus. We have not
authorized anyone to provide you with additional or different
information from that contained or incorporated by reference in
this prospectus. The information contained in this prospectus is
accurate only as of the date on the front cover of this
prospectus, and any information we have incorporated by
reference in this prospectus is accurate only as of the date of
the document incorporated by reference, regardless of the time
of delivery of this prospectus or the securities offered hereby.
We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted.
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RISK
FACTORS
An investment in our securities involves a high degree of risk.
Before making an investment decision, you should carefully
consider the risk factors incorporated by reference in this
prospectus, as well as those contained in any applicable
prospectus supplement, as the same may be updated from time to
time by our future filings under the Securities Exchange Act of
1934. You should also refer to the other information contained
in or incorporated by reference in this prospectus and any
applicable prospectus supplement, including our financial
statements and the related notes incorporated by reference
herein. Additional risks and uncertainties not currently known
to us or that we currently deem to be immaterial may also
materially and adversely affect our business and operations.
DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements made and information contained in this
prospectus and the documents we incorporate by reference herein,
excluding historical information, are forward-looking
statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements may be found
throughout this prospectus and the documents we incorporate by
reference. Forward-looking statements typically are identified
by the use of terms such as may, will,
should, expect, anticipate,
believe, estimate, intend
and similar words, although some forward-looking statements are
expressed differently and describe our expectations, plans,
strategies and goals and our beliefs concerning future business
conditions, our results of operations, financial position, and
our business outlook or state other forward-looking
information based on currently available information. The
factors listed above under the heading Risk Factors
and in other sections of this prospectus and the documents we
incorporate by reference herein provide examples of risks,
uncertainties and events that could cause our actual results to
differ materially from the expectations expressed in our
forward-looking statements. These statements include, among
other things, the following:
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projections of revenues, cost of raw materials, income or loss,
earnings or loss per share, capital expenditures, growth
prospects, dividends, the effect of currency translations,
capital structure and other financial items;
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statements regarding our plans and objectives, including the
introduction of new products or estimates or predictions of
actions by customers, suppliers, competitors or regulating
authorities;
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statements of future economic performance;
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statements of assumptions, such as the prevailing weather
conditions in our market areas, underlying other statements and
statements about our business; and
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statements regarding our ability to obtain amendments under our
debt agreements.
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Factors that could cause actual results to differ materially
from these forward-looking statements include, but are not
limited to the following general factors:
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our ability to implement and fund our business strategies and
restructuring plans based on current liquidity;
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lead, which experiences significant fluctuations in market price
and which, as a hazardous material, may give rise to costly
environmental and safety claims, can affect our results because
it is a major constituent in most of our products;
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unseasonable weather (warm winters and cool summers), which
adversely affects demand for automotive and some industrial
energy batteries;
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our reliance on a single supplier for our polyethylene battery
separators;
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a pending preliminary SEC inquiry;
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our substantial debt and debt service requirements which
restrict our operating and financial flexibility, and impose
significant interest and financing costs and our ability to
comply with the covenants in our debt agreements or obtain
waivers of noncompliance;
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we are subject to a number of litigation and regulatory
proceedings, the results of which could have a material adverse
effect on our business, financial condition or results of
operations;
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the realization of the tax benefits of our net operating loss
carry forwards, which are dependent upon future taxable income;
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the battery markets in North America and Europe are very
competitive and, as a result, it is often difficult to maintain
margins;
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foreign operations involve risk such as disruption of markets,
changes in import and export laws, currency restrictions,
currency exchange rate fluctuations and possible terrorist
attacks against U.S. interests;
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we are exposed to fluctuations in interest rates on our variable
debt which can affect our results;
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our ability to maintain and generate liquidity to meet our
operating needs;
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general economic conditions;
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Asian batteries sold in North America and Europe at lower prices;
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our ability to acquire goods and services or fulfill labor needs
at budgeted costs;
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our ability to attract and retain key personnel;
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our ability to pass along increased material costs to our
customers;
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the loss of one or more of our major customers;
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our significant pension obligations over the next several years;
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the substantial management time and financial and other
resources needed for our consolidation and rationalization of
acquired entities; and
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our ability to comply with the provisions of Section 404 of
the Sarbanes-Oxley Act of 2002.
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Although we believe that the expectations reflected in such
forward-looking statements are reasonable, we can give no
assurance that such expectations will prove to have been
correct. The forward-looking statements made in this prospectus
and the documents we incorporate by reference relate only to
events as of the date on which the statements are made. We
undertake no obligation to update beyond that required by law
any forward-looking statement to reflect events or circumstances
after the date on which the statement is made or to reflect the
occurrence of unanticipated events.
USE OF
PROCEEDS
We intend to use the net proceeds from the sales of the
securities described in this prospectus as set forth in the
applicable prospectus supplement.
RATIOS OF
EARNINGS TO FIXED CHARGES
The deficiency of earnings to fixed charges for each of the
periods indicated is as follows (dollars in thousands):
Deficiency
of Earnings to Fixed Charges
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Predecessor Company
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Successor Company
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Fiscal Year
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Nine Months
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Period from
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Period from
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Ended
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Ended
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Fiscal Year Ended
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April 1, 2004 to
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May 6, 2004 to
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March 31,
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December 31,
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2002
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2003
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2004
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May 5, 2004
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March 31, 2005
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2006
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2006
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$301,159
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$
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110,714
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$
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90,109
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$
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40,795
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(1)
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$
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449,218
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$
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154,452
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$
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82,570
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(1) |
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Excludes gain on discharge of liabilities of $1,558,839 and
fresh start accounting adjustments of $228,371. |
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For purposes of computing the ratios of earnings to fixed
charges, earnings consist of income before provision for fixed
charges, amortization of capitalized interest and unremitted
earnings from equity investments, less interest capitalized and
minority interest. Fixed charges include interest expense,
amortization of deferred financing costs, amortization of
original issue discount on notes and the portion of rental
expense under operating leases deemed by us to be representative
of the interest factor. The ratio of earnings to fixed charges
was less than 1.00x for all periods presented in the table
above. Earnings available for fixed charges were inadequate to
cover fixed charges for such periods by the amounts indicated in
the table.
We have not included a ratio of earnings to combined fixed
charges and preferred stock dividends because, as of the date of
this prospectus, we had no preferred stock outstanding.
DESCRIPTION
OF COMMON STOCK
The following description of our common stock and certain
provisions of our certificate of incorporation and bylaws is a
summary of the material terms thereof and is qualified in its
entirety by the provisions of our certificate of incorporation
and bylaws, copies of which have been filed with the SEC and are
available for inspection. See Where You Can Find
Additional Information.
Common
Stock
As of March 28, 2007, our authorized common stock consisted
of 100,000,000 shares of common stock, $0.01 par value
per share, and 60,675,876 shares of our common stock were
outstanding. In addition, shares of our common stock are
issuable upon the exercise of conversion rights under our
outstanding options, warrants and convertible notes. For more
information regarding these convertible securities, see the
information under the caption Description of Securities
Convertible into Common Stock.
Holders of our common stock are entitled to one vote for each
share held on all matters submitted to a vote of shareholders,
including the election of directors. Accordingly, holders of a
majority of the shares of common stock entitled to vote in any
election of directors may elect all of the directors standing
for election if they choose to do so. Our certificate of
incorporation does not provide for cumulative voting for the
election of directors. Holders of common stock are entitled to
receive ratably such dividends, if any, as may be declared from
time to time by our board of directors out of funds legally
available therefor, and are entitled to receive, pro rata, all
of our assets available for distribution to such holders upon
liquidation. Holders of common stock have no preemptive or
redemption rights. All outstanding shares of our common stock
are fully paid and nonassessable.
The preceding description sets forth certain general terms and
provisions of our common stock and is not complete. We encourage
you to read our certificate of incorporation and bylaws for
additional information before you decide whether to purchase any
shares of our common stock.
Anti-Takeover
Effects of Our Certificate of Incorporation and Bylaws
Some provisions of our certificate of incorporation and bylaws
may be deemed to have an anti-takeover effect and may delay or
prevent a tender offer or takeover attempt that a shareholder
might consider to be in its best interest, including those
attempts that might result in a premium over the market price
for the shares held by shareholders.
These provisions include, but are not limited to:
No
Removal of Directors Without Cause
Directors may be removed by the shareholders only for cause.
Board
Vacancies
Our certificate of incorporation authorizes our board of
directors to fill vacant directorships or to increase the size
of our board of directors, which may deter a shareholder from
removing incumbent directors and
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simultaneously gaining control of our board of directors by
filling the vacancies created by this removal with its own
nominees.
Cumulative
Voting
Our certificate of incorporation does not authorize our
shareholders the right to cumulative voting in the election of
directors. As a result, shareholders may not aggregate their
votes for a single director.
Shareholder
Action Without a Meeting
Our bylaws prevent our shareholders from taking action without a
meeting called in accordance with the bylaws. As a result, our
shareholders cannot act by written consent.
Advance
Notice of Director Nominees and Other Matters to Come Before
Shareholder Meetings
Our bylaws require shareholders to notify us prior to the date
which is 90 days before the anniversary of the last annual
meeting of shareholders of any nominations they will propose for
directors or other matters they wish to propose at the annual
meeting.
Authorized
but Unissued Shares
Our authorized but unissued shares of common stock and preferred
stock are available for future issuance without shareholder
approval. These additional shares may be utilized for a variety
of corporate purposes, including future public offerings to
raise additional capital, corporate acquisitions and employee
benefit plans. The existence of authorized but unissued shares
of common stock and preferred stock could render more difficult
or discourage an attempt to obtain control of a majority of our
common stock by means of a proxy contest, tender offer, merger
or otherwise.
Section 203
of Delaware General Corporation Law
We are subject to the business combination statute
of the Delaware General Corporation Law. In general, such
statute prohibits a publicly held Delaware corporation from
engaging in various business combination
transactions with any interested shareholder for a
period of three years after the date of the transaction in which
the person became an interested shareholder, unless:
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the transaction is approved by our board of directors prior to
the date the interested shareholder obtained such status;
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upon consummation of the transaction which resulted in the
shareholder becoming an interested shareholder, the
interested shareholder owned at least 85% of the
voting stock of the corporation outstanding at the time the
transaction commenced, excluding specified shares; or
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on or subsequent to such date the business
combination is approved by our board of directors and
authorized at an annual or special meeting of the shareholders
by the affirmative vote of at least
662/3%
of the outstanding voting stock which is not owned by the
interested shareholder.
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A business combination includes mergers, asset sales
and other transactions resulting in financial benefit to a
shareholder. An interested shareholder is a person
who, together with affiliates and associates, owns (or within
three years, did own) 15% or more of a corporations voting
stock. The statute could prohibit or delay mergers or other
takeover or change in control attempts with respect to us and,
accordingly, may discourage attempts to acquire us.
Transfer
Agent
American Stock Transfer & Trust Company is the transfer
agent for our common stock.
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DESCRIPTION
OF PREFERRED STOCK
The following description of our preferred stock and certain
provisions of our certificate of incorporation is a summary of
the material terms thereof and is qualified in its entirety by
the provisions of our certificate of incorporation, copies of
which have been filed with the SEC and are available for
inspection. See Where You Can Find Additional
Information.
Pursuant to our certificate of incorporation, we are authorized
to issue 1,000,000 shares of blank check
preferred stock, $0.01 par value per share, which may be
issued from time to time in one or more series upon
authorization by our Board of Directors. No shares of preferred
stock are issued or outstanding.
Our Board of Directors, without further approval of the
shareholders, is authorized to fix the dividend rights and
terms, conversion rights, voting rights, redemption rights and
terms, liquidation preferences, and any other rights,
preferences, privileges and restrictions applicable to each
series of the preferred stock. The applicable prospectus
supplement will describe the terms of any units in respect of
which this prospectus is being delivered, including, to the
extent applicable, the following:
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the designation of such series;
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the dividend rate of such series, the conditions and dates upon
which such dividends shall be payable, the relation that such
dividends shall bear to the dividends payable on any other class
or classes or series of our capital stock, and whether such
dividends shall be cumulative or non-cumulative;
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whether the shares of such series shall be subject to redemption
for cash, property or rights, including our securities or the
securities of any other corporation, by us at either our option
or the option of the holder or both or upon the happening of a
specified event, and, if made subject to any such redemption,
the times or events, prices and other terms and conditions of
such redemption;
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the terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
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whether or not the shares of such series shall be convertible
into, or exchangeable for, at the option of either the holder or
us or upon the happening of a specified event, shares of any
other class or classes or of any other series of the same or any
other class or classes of our capital stock, and, if provision
be made for conversion or exchange, the times or events, prices,
rates, adjustments and other terms and conditions of such
conversions or exchanges;
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the restrictions, if any, on the issue or reissue of any
additional preferred stock;
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the rights of the holders of the shares of such series upon our
voluntary or involuntary liquidation, dissolution or winding
up; and
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the provisions as to voting (which may be one or more votes per
share or a fraction of a vote per share), optional or other
special rights and preferences, if any.
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Delaware law provides that the holders of preferred stock 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 preferred stock.
The preceding description sets forth certain general terms and
provisions of the preferred stock to which any prospectus
supplement may relate. The particular terms of the preferred
stock to which any prospectus supplement may relate and the
extent, if any, to which the general provisions may apply to the
preferred stock so offered will be described in the applicable
prospectus supplement. To the extent that any particular terms
of the certificate of designation described in a prospectus
supplement differ from any of the terms described below, then
the terms described below will be deemed to have been superseded
by that prospectus supplement. We encourage you to read the
applicable certificate of designation for additional information
before you decide whether to purchase any of our preferred stock.
6
DESCRIPTION
OF RIGHTS
We may issue rights to our stockholders to purchase shares of
our common stock or our preferred stock. Each series of rights
will be issued under a separate rights agreement to be entered
into between us and a bank or trust company, as rights agent.
The rights agent will act solely as our agent in connection with
the certificates relating to the rights of the series of
certificates and will not assume any obligation or relationship
of agency or trust for or with any holders of rights
certificates or beneficial owners of rights. The following
description sets forth certain general terms and provisions of
the rights to which any prospectus supplement may relate. The
particular terms of the rights to which any prospectus
supplement may relate and the extent, if any, to which the
general provisions may apply to the rights so offered will be
described in the applicable prospectus supplement. To the extent
that any particular terms of the rights, rights agreements or
rights certificates described in a prospectus supplement differ
from any of the terms described below, then the terms described
below will be deemed to have been superseded by that prospectus
supplement. We encourage you to read the applicable rights
agreement and rights certificate for additional information
before you decide whether to purchase any of our rights.
We will provide in a prospectus supplement the following terms
of the rights being issued:
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the date of determining the stockholders entitled to the rights
distribution;
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the aggregate number of shares of common stock or preferred
stock purchasable upon exercise of the rights;
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the exercise price;
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the aggregate number of rights issued;
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the date, if any, on and after which the rights will be
separately transferable;
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the date on which the right to exercise the rights will
commence, and the date on which the right will expire;
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the method by which holders of rights will be entitled to
exercise;
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the conditions to the completion of the offering, if any;
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the withdrawal, termination and cancellation rights, if any;
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any applicable federal income tax considerations; and
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any other terms of the rights, including terms, procedures and
limitations relating to the distribution, exchange and exercise
of the rights.
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Each right will entitle the holder of rights to purchase for
cash the principal amount of shares of common stock or preferred
stock at the exercise price provided in the applicable
prospectus supplement. Rights may be exercised at any time up to
the close of business on the expiration date for the rights
provided in the applicable prospectus supplement.
Holders may exercise rights as described in the applicable
prospectus supplement. Upon receipt of payment and the rights
certificate properly completed and duly executed at the
corporate trust office of the rights agent or any other office
indicated in the prospectus supplement, we will, as soon as
practicable, forward the shares of common stock or preferred
stock, as applicable, purchasable upon exercise of the rights.
If less than all of the rights issued in any rights offering are
exercised, we may offer any unsubscribed securities directly to
persons other than stockholders, to or through agents,
underwriters or dealers or through a combination of such
methods, including pursuant to standby arrangements, as
described in the applicable prospectus supplement.
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DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of our debt securities,
common stock, preferred stock or depositary shares or any
combination thereof. Warrants may be issued independently or
together with any other securities offered by a prospectus
supplement. Warrants may be attached to or separate from such
securities. Warrants may be issued under warrant agreements to
be entered into between us and a warrant agent specified in the
applicable prospectus supplement. The warrant agent will act
solely as our agent in connection with the warrants of a
particular series and will not assume any obligation or
relationship of agency or trust for or with any holders or
beneficial owners of warrants.
The following description sets forth certain general terms and
provisions of the warrants to which any prospectus supplement
may relate. The particular terms of the warrants to which any
prospectus supplement may relate and the extent, if any, to
which the general provisions may apply to the warrants so
offered will be described in the applicable prospectus
supplement. To the extent that any particular terms of the
warrants, warrant agreements or warrant certificates described
in a prospectus supplement differ from any of the terms
described below, then the terms described below will be deemed
to have been superseded by that prospectus supplement. We
encourage you to read the applicable warrant agreement and
certificate for additional information before you decide whether
to purchase any of our warrants.
The applicable prospectus supplement will describe the terms of
the warrants in respect of which this prospectus is being
delivered, including, where applicable, the following:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the designation, number and terms of our debt securities, common
stock, preferred stock or depositary shares or combination
thereof, purchasable upon exercise of such warrants;
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the designation and terms of the other securities, if any, with
which such warrants are issued and the number of such warrants
issued with each such security;
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the date, if any, on and after which such warrants and the
related underlying securities will be separately transferable;
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the price at which each underlying security purchasable upon
exercise of such warrants may be purchased;
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the date on which the right to exercise such warrants shall
commence and the date on which such right shall expire;
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the minimum amount of such warrants which may be exercised at
any one time;
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information with respect to book-entry procedures, if any;
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any applicable federal income tax considerations; and
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any other terms of such warrants, including terms, procedures
and limitations relating to the transferability, exchange and
exercise of such warrants.
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Each warrant will entitle the holder of warrants to purchase for
cash the amount of debt or equity securities, at the exercise
price stated or determinable in the prospectus supplement for
the warrants. Warrants may be exercised at any time up to the
close of business on the expiration date shown in the applicable
prospectus supplement, unless otherwise specified in such
prospectus supplement. After the close of business on the
expiration date, unexercised warrants will become void. Warrants
may be exercised as described in the applicable prospectus
supplement. When the warrant holder makes the payment and
properly completes and signs the warrant certificate at the
corporate trust office of the warrant agent or any other office
indicated in the prospectus supplement, we will, as soon as
possible, forward the debt or equity securities that the warrant
holder has purchased. If the warrant holder exercises the
warrant for less than all of the warrants represented by the
warrant certificate, we will issue a new warrant certificate for
the remaining warrants.
8
DESCRIPTION
OF DEPOSITARY SHARES
We may offer depositary shares (either separately or together
with other securities) representing fractional shares of our
preferred stock of any series. The following description sets
forth certain general terms and provisions of the depositary
shares to which any prospectus supplement may relate. The
particular terms of the depositary shares to which any
prospectus supplement may relate and the extent, if any, to
which the general provisions may apply to the depositary shares
so offered will be described in the applicable prospectus
supplement. To the extent that any particular terms of the
depositary shares, deposit agreements and depositary receipts
described in a prospectus supplement differ from any of the
terms described below, then the terms described below will be
deemed to have been superseded by that prospectus supplement. We
encourage you to read the applicable deposit agreement and
depositary receipts for additional information before you decide
whether to purchase any of our depositary shares.
In connection with the issuance of any depositary shares, we
will enter into a deposit agreement with a bank or trust
company, as depositary, which will be named in the applicable
prospectus supplement. Depositary shares will be evidenced by
depositary receipts issued pursuant to the related deposit
agreement. Immediately following our issuance of the security
related to the depositary shares, we will deposit the shares of
its preferred stock with the relevant depositary and will cause
the depositary to issue, on our behalf, the related depositary
receipts. Subject to the terms of the deposit agreement, each
owner of a depositary receipt will be entitled, in proportion to
the fraction of a share of preferred stock represented by the
related depositary share, to all the rights, preferences and
privileges of, and will be subject to all of the limitations and
restrictions on, the preferred stock represented by the
depositary receipt (including, if applicable, dividend, voting,
conversion, exchange, redemption, sinking fund, repayment at
maturity, subscription and liquidation rights).
DESCRIPTION
OF PURCHASE CONTRACTS
We may issue purchase contracts, including contracts obligating
holders to purchase from us, and for us to sell to holders, a
specific or variable number of our debt securities, shares of
common stock, preferred stock or depositary shares, warrants, or
securities of an entity unaffiliated with us, or any combination
of the above, at a future date or dates. Alternatively, the
purchase contracts may obligate us to purchase from holders, and
obligate holders to sell to us, a specific or varying number of
our debt securities, shares of common stock, preferred stock or
depositary shares, warrants, or other property, or any
combination of the above. The price of the securities or other
property subject to the purchase contracts may be fixed at the
time the purchase contracts are issued or may be determined by
reference to a specific formula described in the purchase
contracts. We may issue purchase contracts separately or as a
part of units each consisting of a purchase contract and one or
more of our other securities described in this prospectus or
securities of third parties, including U.S. Treasury
securities, securing the holders obligations under the
purchase contract. The purchase contracts may require us to make
periodic payments to holders or vice versa and the payments may
be unsecured or pre-funded on some basis. The purchase contracts
may require holders to secure the holders obligations in a
manner specified in the applicable prospectus supplement.
The applicable prospectus supplement will describe the terms of
any purchase contracts in respect of which this prospectus is
being delivered, including, to the extent applicable, the
following:
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whether the purchase contracts obligate the holder or us to
purchase or sell, or both purchase and sell, the securities
subject to purchase under the purchase contract, and the nature
and amount of each of those securities, or the method of
determining those amounts;
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whether the purchase contracts are to be prepaid or not;
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whether the purchase contracts are to be settled by delivery, or
by reference or linkage to the value, performance or level of
the securities subject to purchase under the purchase contract;
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any acceleration, cancellation, termination or other provisions
relating to the settlement of the purchase contracts;
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any applicable federal income tax considerations; and
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whether the purchase contracts will be issued in fully
registered or global form.
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The preceding description sets forth certain general terms and
provisions of the purchase contracts to which any prospectus
supplement may relate. The particular terms of the purchase
contracts to which any prospectus supplement may relate and the
extent, if any, to which the general provisions may apply to the
purchase contracts so offered will be described in the
applicable prospectus supplement. To the extent that any
particular terms of the purchase contracts described in a
prospectus supplement differ from any of the terms described
above, then the terms described above will be deemed to have
been superseded by that prospectus supplement. We encourage you
to read the applicable purchase contract for additional
information before you decide whether to purchase any of our
purchase contracts.
DESCRIPTION
OF UNITS
We may issue units comprising one or more of our securities
described in this prospectus in any combination. Units may also
include debt obligations of third parties, such as
U.S. Treasury securities. Each unit will be issued so that
the holder of the unit also is the holder of each security
included in the unit. Thus, the holder of a unit will have the
rights and obligations of a holder of each included security.
The unit agreement under which a unit is issued may provide that
the securities included in the unit may not be held or
transferred separately at any time or at any time before a
specified date or occurrence.
The applicable prospectus supplement will describe the terms of
any units in respect of which this prospectus is being
delivered, including, to the extent applicable, the following:
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the designation and terms of the units and the securities
included in the units, including whether and under what
circumstances those securities may be held or transferred
separately;
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any provision for the issuance, payment, settlement, transfer or
exchange of the units or of the securities included in the units;
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any applicable federal income tax considerations; and
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whether the units will be issued in fully registered or global
form.
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The preceding description sets forth certain general terms and
provisions of the units to which any prospectus supplement may
relate. The particular terms of the units to which any
prospectus supplement may relate and the extent, if any, to
which the general provisions may apply to the units so offered
will be described in the applicable prospectus supplement. To
the extent that any particular terms of the units, unit
agreements or unit certificates described in a prospectus
supplement differ from any of the terms described above, then
the terms described above will be deemed to have been superseded
by that prospectus supplement. We encourage you to read the
applicable unit agreement and unit certificate for additional
information before you decide whether to purchase any of our
units.
DESCRIPTION
OF DEBT SECURITIES
This section describes certain general terms and provisions that
we expect would be applicable to our debt securities. When we
offer to sell a particular series of debt securities, we will
describe the specific terms of that series in a supplement to
this prospectus. The following description of debt securities
will apply to the debt securities offered by this prospectus
unless we provide otherwise in the applicable prospectus
supplement. The applicable prospectus supplement for a
particular series of debt securities may specify different or
additional terms.
The debt securities offered hereby may be secured or unsecured,
and may be senior debt securities, senior subordinated debt
securities or subordinated debt securities. The debt securities
offered hereby will be issued under an indenture between us and
a trustee. The indenture will be qualified under, subject to,
and governed by, the Trust Indenture Act of 1939, as amended, or
the Trust Indenture Act.
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General
The terms of each series of debt securities will be established
by or pursuant to a resolution of our board of directors and
detailed or determined in the manner provided in a board of
directors resolution, an officers certificate or by
a supplemental indenture. The particular terms of each series of
debt securities will be described in a prospectus supplement
relating to the series, including any pricing supplement.
We can issue an unlimited amount of debt securities under an
indenture that may be in one or more series with the same or
various maturities, at par, at a premium or at a discount. We
will set forth in a prospectus supplement, including any pricing
supplement, relating to any series of debt securities being
offered the initial offering price, the aggregate principal
amount and the following terms of the debt securities:
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the title of the debt securities;
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the price or prices (expressed as a percentage of the aggregate
principal amount) at which we will sell the debt securities;
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any limit on the aggregate principal amount of the debt
securities;
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the date or dates on which we will pay the principal on the debt
securities;
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the rate or rates (which may be fixed or variable) per annum or
the method used to determine the rate or rates (including any
commodity, commodity index, stock exchange index or financial
index) at which the debt securities will bear interest, the date
or dates from which interest will accrue, the date or dates on
which interest will commence and be payable and any regular
record date for the interest payable on any interest payment
date;
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the place or places where the principal of, premium, and
interest on the debt securities will be payable;
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the terms and conditions upon which we may redeem the debt
securities;
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any obligation we have to redeem or purchase the debt securities
pursuant to any sinking fund or analogous provisions or at the
option of a holder of debt securities;
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the dates on which and the price or prices at which we will
repurchase the debt securities at the option of the holders of
debt securities and other detailed terms and provisions of these
repurchase obligations;
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the denominations in which the debt securities will be issued,
if other than denominations of $1,000 and any integral multiple
thereof;
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whether the debt securities will be issued in the form of
certificated debt securities or global debt securities;
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the portion of principal amount of the debt securities payable
upon declaration of acceleration of the maturity date, if other
than the principal amount;
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the currency of denomination of the debt securities;
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the designation of the currency, currencies or currency units in
which payment of principal of, premium and interest on the debt
securities will be made;
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if payments of principal of, premium or interest on the debt
securities will be made in one or more currencies or currency
units other than that or those in which the debt securities are
denominated, the manner in which the exchange rate with respect
to these payments will be determined;
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the manner in which the amounts of payment of principal of,
premium or interest on the debt securities will be determined,
if these amounts may be determined by reference to an index
based on a currency or currencies other than that in which the
debt securities are denominated or designated to be payable or
by reference to a commodity, commodity index, stock exchange
index or financial index;
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any provisions relating to any security provided for the debt
securities;
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any addition to or change in the events of default described in
this prospectus or in the indenture with respect to the debt
securities and any change in the acceleration provisions
described in this prospectus or in the indenture with respect to
the debt securities;
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any addition to or change in the covenants described in this
prospectus or in the indenture with respect to the debt
securities;
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whether the debt securities will be senior or subordinated and
any applicable subordination provisions;
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any other terms of the debt securities, which may modify or
delete any provision of the indenture as it applies to that
series; and
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any depositaries, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to the debt
securities.
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We may issue debt securities that are exchangeable or
convertible into shares of our common stock or preferred stock.
The terms, if any, on which the debt securities may be exchanged
for or converted will be set forth in the applicable prospectus
supplement. Such terms may include provisions for conversion,
either mandatory, at the option of the holder or at our option,
in which case the number of shares of common stock or preferred
stock or other securities to be received by the holders of debt
securities would be calculated as of a time and in the manner
stated in the prospectus supplement.
We may issue debt securities that provide for an amount less
than their stated principal amount to be due and payable upon
declaration of acceleration of their maturity pursuant to the
terms of the indenture. We will provide you with information on
the federal income tax considerations and other special
considerations applicable to any of these debt securities in the
applicable prospectus supplement.
If we denominate the purchase price of any of the debt
securities in a foreign currency or currencies or a foreign
currency unit or units, or if the principal of and any premium
and interest on any series of debt securities is payable in a
foreign currency or currencies or a foreign currency unit or
units, we will provide you with information on the restrictions,
elections, general tax considerations, specific terms and other
information with respect to that issue of debt securities and
such foreign currency or currencies or foreign currency unit or
units in the applicable prospectus supplement.
Payment
of Interest and Exchange
Each debt security will be represented by either one or more
global securities registered in the name of The Depository Trust
Company, New York, New York, as Depository, or a nominee of the
Depository (we will refer to any debt security represented by a
global debt security as a book-entry debt security), or a
certificate issued in definitive registered form (we will refer
to any debt security represented by a certificated security as a
certificated debt security), as described in the applicable
prospectus supplement. Except as described under Global
Debt Securities and Book-Entry System below, book-entry
debt securities will not be issuable in certificated form.
Certificated
Debt Securities
You may transfer or exchange certificated debt securities at the
trustees office or paying agencies in accordance with the
terms of the indenture. No service charge will be made for any
transfer or exchange of certificated debt securities, but we may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with a transfer or
exchange.
You may transfer certificated debt securities and the right to
receive the principal of, premium and interest on certificated
debt securities only by surrendering the old certificate
representing those certificated debt securities and either we or
the trustee will reissue the old certificate to the new holder
or we or the trustee will issue a new certificate to the new
holder.
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Global
Debt Securities and Book-Entry System
Each debt security offered by this prospectus will be issued in
the form of one or more global debt securities representing all
or part of that series of debt securities. This means that we
will not issue certificates for that series of debt securities
to the holders. Instead, a global debt security representing
that series will be deposited with, or on behalf of, the
Depository, or its successor as the Depository and registered in
the name of the Depository or a nominee of the Depository.
The Depository will keep a computerized record of its
participants (for example, your broker) whose clients have
purchased securities represented by a global debt security.
Unless it is exchanged in whole or in part for a certificated
debt security, a global debt security may not be transferred,
except that the Depository, its nominees and their successors
may transfer a global debt security as a whole to one another.
Beneficial interests in global debt securities will be shown on,
and transfers of interests will be made only through, records
maintained by the Depository and its participants. The laws of
some jurisdictions require that some purchasers take physical
delivery of securities in definitive form. These laws may impair
the ability to transfer beneficial interests in a global debt
security.
We will wire principal, interest and any premium payments to the
Depository or its nominee. We and the trustee will treat the
Depository or its nominee as the owner of the global debt
security for all purposes, including any notices and voting.
Accordingly, we, the trustee and any paying agent will have no
direct responsibility or liability to pay amounts due on a
global debt security to owners of beneficial interests in a
global debt security.
Unless we specify otherwise in the applicable prospectus
supplement, the Depository will act as depository for debt
securities issued as global debt securities. The debt securities
will be registered in the name of Cede & Co. (the
Depositorys partnership nominee).
The Depository is a limited-purpose trust company organized
under the New York Banking Law, a banking
organization within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a clearing
corporation within the meaning of the New York Uniform
Commercial Code, and a clearing agency registered
pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934. The Depository holds securities that
its participants, or direct participants, deposit with the
Depository. The Depository also facilitates the post-trade
settlement among direct participants of sales and other
securities transactions in deposited securities through
electronic computerized book-entry transfers and pledges between
direct participants accounts. This eliminates the need for
physical movement of securities certificates. Direct
participants include both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations. The Depository is
a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation, or DTCC. DTCC, in turn, is owned by a
number of direct participants of the Depository and Members of
the National Securities Clearing Corporation, Fixed Income
Clearing Corporation and Emerging Markets Clearing Corporation
(NSCC, FICC and EMCC, are also subsidiaries of DTCC), as well as
by the New York Stock Exchange, Inc., the American Stock
Exchange, LLC, and the National Association of Securities
Dealers, Inc. Access to the Depository system is also available
to others such as securities brokers and dealers, banks, trust
companies and clearing corporations that clear through or
maintain a custodial relationship with a direct participant,
either directly or indirectly, or indirect participants. The
rules that apply to the Depository and its direct or indirect
participants or, collectively, participants, are on file with
the SEC. More information about the Depository can be found at
www.dtcc.com.
Purchases of debt securities under the Depository system must be
made by or through direct participants, which will receive a
credit for the debt securities on the Depositorys records.
The ownership interest of each actual purchaser of each debt
security, or beneficial owner, is in turn to be recorded on the
direct and indirect participants records. Beneficial
owners will not receive written confirmation from the Depository
of their purchase. Beneficial owners are, however, expected to
receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings,
from the direct or indirect participant through which the
beneficial owner entered into the transaction. Transfers of
ownership interests in the debt securities are to be
accomplished by entries made on the books of direct and indirect
participants acting on behalf of
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beneficial owners. Beneficial owners will not receive
certificates representing their ownership interests in debt
securities, except in the event that use of the book-entry
system for the debt securities is discontinued.
To facilitate subsequent transfers, all securities deposited by
direct participants with the Depository are registered in the
name of the Depositorys partnership nominee,
Cede & Co. or such other name as may be requested by an
authorized representative of the Depository. The deposit of
securities with the Depository and their registration in the
name of Cede & Co. or such other nominee do not effect
any change in beneficial ownership. The Depository has no
knowledge of the actual beneficial owners of the debt
securities; the Depositorys records reflect only the
identity of the direct participants to whose accounts such debt
securities are credited, which may or may not be the beneficial
owners. The direct and indirect participants will remain
responsible for keeping account of their holdings on behalf of
their customers.
Conveyance of notices and other communications by the Depository
to direct participants, by direct participants to indirect
participants, and by direct participants and indirect
participants to beneficial owners will be governed by
arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to the Depository. If less than
all of the debt securities within a series are being redeemed,
the Depositorys practice is to determine by lot the amount
of the interest of each direct participant in such series to be
redeemed.
Neither the Depository nor Cede & Co. (nor such other
Depository nominee) will consent or vote with respect to the
debt securities unless authorized by a direct participant in
accordance with the Depositorys procedures. Under its
usual procedures, the Depository mails an omnibus proxy to us as
soon as possible after the record date. The omnibus proxy
assigns Cede & Co.s consenting or voting rights
to those direct participants to whose accounts the debt
securities are credited on the record date (identified in a
listing attached to the omnibus proxy).
Redemption proceeds, distributions, dividend, principal and
interest payments on the debt securities will be made to
Cede & Co., or such other nominee as may be requested
by an authorized representative of the Depository. The
Depositorys practice is to credit direct
participants accounts, upon the Depositorys receipt
of funds and corresponding detail information from us or the
trustee on payable date in accordance with their respective
holdings shown on the Depositorys records. Payments by
participants to beneficial owners will be governed by standing
instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or
registered in street name, and will be the
responsibility of such participant and not of the Depository nor
its nominee, the trustee, or us, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Payment of redemption proceeds, distributions, and dividend
payments to Cede & Co. (or such other nominee as may be
requested by an authorized representative of the Depository) is
the responsibility of us or the trustee, disbursement of such
payments to direct participants will be the responsibility of
the Depository, and disbursement of such payments to the
beneficial owners will be the responsibility of direct and
indirect participants.
The Depository may discontinue providing its services as
securities depository with respect to the debt securities at any
time by giving reasonable notice to us or the trustee. We will
issue certificated debt securities in exchange for each global
debt security if the Depository is at any time unwilling or
unable to continue as Depository or ceases to be a clearing
agency registered under the Exchange Act, and a successor
Depository registered as a clearing agency under the Exchange
Act is not appointed by us within 90 days. In addition, we
may at any time and in our sole discretion determine not to have
any of the book-entry debt securities of any series represented
by one or more global debt securities and, in that event, we
will issue certificated debt securities in exchange for the
global debt securities of that series. Global debt securities
will also be exchangeable by the holders for certificated debt
securities if an event of default with respect to the book-entry
debt securities represented by those global debt securities has
occurred and is continuing. Any certificated debt securities
issued in exchange for a global debt security will be registered
in such name or names as the Depository shall instruct the
trustee. We expect that such instructions will be based upon
directions received by the Depository from participants with
respect to ownership of book-entry debt securities relating to
such global debt security.
14
We have obtained the foregoing information in this section
concerning the Depository and the Depositorys book-entry
system from sources we believe to be reliable. We take no
responsibility for the accuracy of the information or for the
Depositorys performance of its obligations under the rules
and regulations governing its operations.
Any underwriters, dealers or agents of any debt securities may
be direct participants of the Depository.
No
Protection in the Event of a Change in Control
Unless we provide otherwise in the applicable prospectus
supplement, the debt securities will not contain any provisions
which may afford holders of the debt securities protection in
the event we have a change in control or in the event of a
highly leveraged transaction (whether or not such transaction
results in a change in control).
Covenants
Unless we provide otherwise in the applicable prospectus
supplement, the debt securities will not contain any restrictive
covenants, including covenants restricting us or any of our
subsidiaries from incurring, issuing, assuming or guarantying
any indebtedness secured by a lien on any of our or our
subsidiaries property or capital stock, or restricting us
or any of our subsidiaries from entering into any sale and
leaseback transactions.
Consolidation,
Merger and Sale of Assets
Unless we provide otherwise in the applicable prospectus
supplement, we may not consolidate with or merge into, or
convey, transfer or lease all or substantially all of our
properties and assets to, any person, or a successor person, and
we may not permit any person to merge into, or convey, transfer
or lease its properties and assets substantially as an entirety
to us, unless:
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the successor person is a corporation, partnership, trust or
other entity organized and validly existing under the laws of
any U.S. domestic jurisdiction;
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immediately after giving effect to the transaction, no event of
default shall have occurred and be continuing under the
indenture; and
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certain other conditions are met.
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Events of
Default
Unless we provide otherwise in the applicable prospectus
supplement, event of default will mean, with respect
to any series of debt securities, any of the following:
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failure to pay principal of or any premium on any debt security
of that series when due;
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failure to pay any interest on any debt security of that series
within 30 days when due;
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failure to deposit any sinking fund payment within 30 days
of when due;
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failure to perform any other covenant in the indenture continued
for 90 days after being given the notice required in the
indenture;
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our bankruptcy, insolvency or reorganization; and
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any other event of default specified in the prospectus
supplement.
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No event of default with respect to a particular series of debt
securities (except as to certain events of bankruptcy,
insolvency or reorganization) will necessarily constitute an
event of default with respect to any other series of debt
securities. An event of default may also be an event of default
under our bank credit agreements or other debt securities in
existence from time to time and under certain guaranties by us
of any
15
subsidiary indebtedness. In addition, certain events of default
or an acceleration under the indenture may also be an event of
default under some of our other indebtedness outstanding from
time to time.
Unless we provide otherwise in the applicable prospectus
supplement, if an event of default with respect to debt
securities of any series at the time outstanding occurs and is
continuing (other than certain events of our bankruptcy,
insolvency or reorganization), then the trustee or the holders
of not less than 25% in principal amount of the outstanding debt
securities of that series may, by written notice to us (and to
the trustee if given by the holders), declare to be due and
payable immediately the principal (or, if the debt securities of
that series are discount securities, that portion of the
principal amount as may be specified in the terms of that
series) of and accrued and unpaid interest, if any, of all debt
securities of that series. In the case of an event of default
resulting from certain events of bankruptcy, insolvency or
reorganization, the principal (or such specified amount) of and
accrued and unpaid interest, if any, of all outstanding debt
securities will become and be immediately due and payable
without any declaration or other act by the trustee or any
holder of outstanding debt securities. At any time after a
declaration of acceleration with respect to debt securities of
any series has been made, but before the trustee has obtained a
judgment or decree for payment of the money due, the holders of
a majority in principal amount of the outstanding debt
securities of that series may, subject to our having paid or
deposited with the trustee a sum sufficient to pay overdue
interest and principal which has become due other than by
acceleration and certain other conditions, rescind and annul
such acceleration if all events of default, other than the
non-payment of accelerated principal and interest, if any, with
respect to debt securities of that series, have been cured or
waived as provided in the indenture. For information as to
waiver of defaults, see the discussion under the heading
Modification and Waiver below. We refer you to the
prospectus supplement relating to any series of debt securities
that are discount securities for the particular provisions
relating to acceleration of a portion of the principal amount of
the discount securities upon the occurrence of an event of
default and the continuation of an event of default.
Unless we provide otherwise in the applicable prospectus
supplement, the indenture will provide that the trustee will be
under no obligation to exercise any of its rights or powers
under the indenture at the request of any holder of outstanding
debt securities, unless the trustee receives indemnity
satisfactory to it against any loss, liability or expense.
Subject to certain rights of the trustee, 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.
Unless we provide otherwise in the applicable prospectus
supplement, no holder of any debt security of any series will
have any right to institute any proceeding, judicial or
otherwise, with respect to the indenture or for the appointment
of a receiver or trustee, or for any remedy under the indenture,
unless:
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that holder has previously given to the trustee written notice
of a continuing event of default with respect to debt securities
of that series;
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the holders of at least 25% in principal amount of the
outstanding debt securities of that series have made a written
request, and offered reasonable indemnity, to the trustee to
institute such proceeding as trustee; and
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the trustee shall not have received from the holders of a
majority in principal amount of the outstanding debt securities
of that series a direction inconsistent with that request and
has failed to institute the proceeding within 60 days.
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Notwithstanding the foregoing, the holder of any debt security
will have an absolute and unconditional right to receive payment
of the principal of, premium and any interest on that debt
security on or after the due dates expressed in that debt
security and to institute suit for the enforcement of payment.
We will furnish the trustee an annual statement by our officers
as to whether or not we are in default in the performance of the
indenture and, if so, specifying all known defaults.
16
Modification
and Waiver
Unless we provide otherwise in the applicable prospectus
supplement, we and the trustee may change an indenture without
the consent of any holders with respect to certain matters,
including:
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to cure any ambiguity, defect or inconsistency;
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to provide for uncertificated securities in addition to or in
place of certificated securities;
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to provide for the assumption of our obligations to holders of
any debt security in the case of a merger or consolidation or
sale of all or substantially all of our assets;
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to make any change that would provide any additional rights or
benefits to the holders of securities or that does not adversely
affect the legal rights under the indenture of any such holder;
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to comply with requirements of the SEC in order to effect or
maintain the qualification of an indenture under the Trust
Indenture Act;
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to provide for the issuance of additional securities in
accordance with the limitations set forth in the indenture as of
the date of the indenture;
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to allow any guarantor to execute a supplemental indenture with
respect to debt securities and to release guarantors in
accordance with the terms of the indenture; or
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to add additional obligors under the indenture and the
securities.
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Unless we provide otherwise in the applicable prospectus
supplement, we and the trustee may modify and amend the
indenture with the consent of the holders of at least a majority
in principal amount of the outstanding debt securities of each
series affected by the modifications or amendments. We and the
trustee may not make any modification or amendment without the
consent of the holder of each affected debt security then
outstanding if that amendment will:
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change the stated maturity of any debt security;
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reduce the principal, premium, if any, or interest on any debt
security;
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reduce the principal of an original issue discount security or
any other debt security payable on acceleration of maturity;
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reduce the rate of interest on any debt security;
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change the currency in which any debt security is payable;
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impair the right to enforce any payment after the stated
maturity or redemption date;
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waive any default or event of default in payment of the
principal of, premium or interest on any debt security;
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waive a redemption payment or modify any of the redemption
provisions of any debt security;
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adversely affect the right to convert any debt security; or
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change the provisions in the indenture that relate to modifying
or amending the indenture.
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Except for certain specified provisions, the holders of at least
a majority in principal amount of the outstanding debt
securities of any series may, on behalf of the holders of all
debt securities of that series, waive our compliance with
provisions of the indenture. The holders of a majority in
principal amount of the outstanding debt securities of any
series may, on behalf of the holders of all the debt securities
of that series, waive any past default under the indenture with
respect to that series and its consequences, except a default in
the payment of the principal of, premium or any interest on any
debt security of that series; provided, however, that the
holders of a majority in principal amount of the outstanding
debt securities of any series may rescind an acceleration and
its consequences, including any related payment default that
resulted from the acceleration.
17
Defeasance
of Debt Securities and Certain Covenants in Certain
Circumstances
Legal
Defeasance
Unless the terms of the applicable series of debt securities
provide otherwise, we may be discharged from any and all
obligations in respect of the debt securities of any series
(except for certain obligations to register the transfer or
exchange of debt securities of the series, to replace stolen,
lost or mutilated debt securities of the series, and to maintain
paying agencies and certain provisions relating to the treatment
of funds held by paying agents). We will be so discharged on the
91st day after the deposit with the trustee, in trust, of
money or U.S. government obligations or, in the case of
debt securities denominated in a single currency other than
U.S. dollars, foreign government obligations (as described
at the end of this section), that, through the payment of
interest and principal in accordance with their terms, will
provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants to
pay and discharge each installment of principal, premium and
interest on and any mandatory sinking fund payments in respect
of the debt securities of that series on the stated maturity of
such payments in accordance with the terms of the indenture and
those debt securities.
This discharge may occur only if, among other things, we have
delivered to the trustee an officers certificate and an
opinion of counsel stating that we have received from, or there
has been published by, the U.S. Internal Revenue Service a
ruling or, since the date of execution of the indenture, there
has been a change in the applicable U.S. federal income tax
law, in either case to the effect that holders of the debt
securities of such series will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of
the deposit, defeasance and discharge and will be subject to
U.S. federal income tax on the same amount and in the same
manner and at the same times as would have been the case if the
deposit, defeasance and discharge had not occurred.
Defeasance
of Certain Covenants
Unless the terms of the applicable series of debt securities
provide otherwise, upon compliance with certain conditions, we
may omit to comply with certain of the restrictive covenants
contained in the indenture, as well as any additional covenants
contained in a supplement to the indenture, a board resolution
or an officers certificate delivered pursuant to the
indenture. The conditions include:
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depositing with the trustee money or U.S. government
obligations or, in the case of debt securities denominated in a
single currency other than U.S. dollars, foreign government
obligations, that, through the payment of interest and principal
in accordance with their terms, will provide money in an amount
sufficient in the opinion of a nationally recognized firm of
independent public accountants to pay principal, premium and
interest on and any mandatory sinking fund payments in respect
of the debt securities of that series on the stated maturity of
those payments in accordance with the terms of the indenture and
those debt securities;
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such deposit does not result in a breach or constitute a default
under the indenture or any other agreement to which we are a
party;
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no default or event of default with respect to the debt
securities shall have occurred and be continuing on the date of
deposit or during the period ending 90 days after such
date; and
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delivering to the trustee an opinion of counsel to the effect
that the holders of the debt securities of that series will not
recognize income, gain or loss for U.S. federal income tax
purposes as a result of the deposit and related covenant
defeasance and will be subject to U.S. federal income tax
in the same amount and in the same manner and at the same times
as would have been the case if the deposit and related covenant
defeasance had not occurred.
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Covenant
Defeasance and Events of Default
If we exercise our option, as described above, not to comply
with certain covenants of the indenture with respect to any
series of debt securities, and the debt securities of that
series are declared due and payable
18
because of the occurrence of any event of default, the amount of
money or U.S. government obligations or foreign government
obligations on deposit with the trustee will be sufficient to
pay amounts due on the debt securities of that series at the
time of their stated maturity but may not be sufficient to pay
amounts due on the debt securities of that series at the time of
the acceleration resulting from the event of default. However,
we will remain liable for those payments.
Foreign government obligations means, with respect
to debt securities of any series that are denominated in a
currency other than U.S. dollars:
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direct obligations of the government that issued or caused to be
issued such currency for the payment of which obligations its
full faith and credit is pledged, which are not callable or
redeemable at the option of the issuer thereof; or
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obligations of a person controlled or supervised by or acting as
an agency or instrumentality of that government, the timely
payment of which is unconditionally guaranteed as a full faith
and credit obligation by that government, which are not callable
or redeemable at the option of the issuer thereof.
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Governing
Law
The indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York,
except to the extent the Trust Indenture Act is applicable.
Regarding
the Trustee
We may appoint a separate trustee for any series of debt
securities. The trustee will have all the duties and
responsibilities of an indenture trustee specified in the Trust
Indenture Act. The trustee is not required to spend or risk its
own money or otherwise become financially liable while
performing its duties unless it reasonably believes that it will
be repaid or receive adequate indemnity.
Each indenture limits the right of the trustee, should it become
a creditor of us, to obtain payment of claims or secure its
claims.
The trustee is permitted to engage in certain other
transactions. However, if the trustee acquires any conflicting
interest, and there is default under the debt securities of any
series for which they are trustee, the trustee must eliminate
the conflict or resign.
PLAN OF
DISTRIBUTION
We may sell the securities offered by this prospectus from time
to time in one or more transactions, including without
limitation;
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directly to purchasers;
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through agents;
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to or through underwriters or dealers; or
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through a combination of these methods.
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A distribution of the securities offered by this prospectus may
also be effected through the issuance of derivative securities,
including without limitation, warrants, exchangeable securities,
forward delivery contracts and the writing of options.
In addition, the manner in which we may sell some or all of the
securities covered by this prospectus includes, without
limitation, through:
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a block trade in which a broker-dealer will attempt to sell as
agent, but may position or resell a portion of the block, as
principal, in order to facilitate the transaction;
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purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account;
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ordinary brokerage transactions and transactions in which a
broker solicits purchasers; or
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privately negotiated transactions.
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We may also enter into hedging transactions. For example, we may:
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enter into transactions with a broker-dealer or affiliate
thereof in connection with which such broker-dealer or affiliate
will engage in short sales of the common stock pursuant to this
prospectus, in which case such broker-dealer or affiliate may
use shares of common stock received from us to close out its
short positions;
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sell securities short and redeliver such shares to close out our
short positions;
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enter into option or other types of transactions that require us
to deliver common stock to a broker-dealer or an affiliate
thereof, who will then resell or transfer the common stock under
this prospectus; or
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loan or pledge the common stock to a broker-dealer or an
affiliate thereof, who may sell the loaned shares or, in an
event of default in the case of a pledge, sell the pledged
shares pursuant to this prospectus.
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In addition, we may enter into derivative or hedging
transactions with third parties, or sell securities not covered
by this prospectus to third parties in privately negotiated
transactions. In connection with such a transaction, the third
parties may sell securities covered by and pursuant to this
prospectus and an applicable prospectus supplement or pricing
supplement, as the case may be. If so, the third party may use
securities borrowed from us or others to settle such sales and
may use securities received from us to close out any related
short positions. We may also loan or pledge securities covered
by this prospectus and an applicable prospectus supplement to
third parties, who may sell the loaned securities or, in an
event of default in the case of a pledge, sell the pledged
securities pursuant to this prospectus and the applicable
prospectus supplement or pricing supplement, as the case may be.
A prospectus supplement with respect to each series of
securities will state the terms of the offering of the
securities, including:
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the terms of the offering; the name or names of any underwriters
or agents and the amounts of securities underwritten or
purchased by each of them, if any;
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the public offering price or purchase price of the securities
and the net proceeds to be received by us from the sale;
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any delayed delivery arrangements;
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any initial public offering price;
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any underwriting discounts or agency fees and other items
constituting underwriters or agents compensation;
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any discounts or concessions allowed or reallowed or paid to
dealers; and
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any securities exchange on which the securities may be listed.
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The offer and sale of the securities described in this
prospectus by us, the underwriters or the third parties
described above may be effected from time to time in one or more
transactions, including privately negotiated transactions,
either:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to the prevailing market prices; or
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at negotiated prices.
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20
General
Any public offering price and any discounts, commissions,
concessions or other items constituting compensation allowed or
reallowed or paid to underwriters, dealers, agents or
remarketing firms may be changed from time to time.
Underwriters, dealers, agents and remarketing firms that
participate in the distribution of the offered securities may be
underwriters as defined in the Securities Act. Any
discounts or commissions they receive from us and any profits
they receive on the resale of the offered securities may be
treated as underwriting discounts and commissions under the
Securities Act. We will identify any underwriters, agents or
dealers and describe their commissions, fees or discounts in the
applicable prospectus supplement or pricing supplement, as the
case may be.
Underwriters
and Agents
If underwriters are used in a sale, they will acquire the
offered securities for their own account. The underwriters may
resell the offered securities in one or more transactions,
including negotiated transactions. These sales may be made at a
fixed public offering price or prices, which may be changed, at
market prices prevailing at the time of the sale, at prices
related to such prevailing market price or at negotiated prices.
We may offer the securities to the public through an
underwriting syndicate or through a single underwriter. The
underwriters in any particular offering will be mentioned in the
applicable prospectus supplement or pricing supplement, as the
case may be.
Unless otherwise specified in connection with any particular
offering of securities, the obligations of the underwriters to
purchase the offered securities will be subject to certain
conditions contained in an underwriting agreement that we will
enter into with the underwriters at the time of the sale to
them. The underwriters will be obligated to purchase all of the
securities of the series offered if any of the securities are
purchased, unless otherwise specified in connection with any
particular offering of securities. Any initial public offering
price and any discounts or concessions allowed, reallowed or
paid to dealers may be changed from time to time.
We may designate agents to sell the offered securities. Unless
otherwise specified in connection with any particular offering
of securities, the agents will agree to use their best efforts
to solicit purchases for the period of their appointment. We may
also sell the offered securities to one or more remarketing
firms, acting as principals for their own accounts or as agents
for us. These firms will remarket the offered securities upon
purchasing them in accordance with a redemption or repayment
pursuant to the terms of the offered securities.
A prospectus supplement or pricing supplement, as the case may
be, will identify any remarketing firm and will describe the
terms of its agreement, if any, with us and its compensation.
In connection with offerings made through underwriters or
agents, we may enter into agreements with such underwriters or
agents pursuant to which we receive our outstanding securities
in consideration for the securities being offered to the public
for cash. In connection with these arrangements, the
underwriters or agents may also sell securities covered by this
prospectus to hedge their positions in these outstanding
securities, including in short sale transactions. If so, the
underwriters or agents may use the securities received from us
under these arrangements to close out any related open
borrowings of securities.
Dealers
We may sell the offered securities to dealers as principals. We
may negotiate and pay dealers commissions, discounts or
concessions for their services. The dealer may then resell such
securities to the public either at varying prices to be
determined by the dealer or at a fixed offering price agreed to
with us at the time of resale. Dealers engaged by us may allow
other dealers to participate in resales.
Direct
Sales
We may choose to sell the offered securities directly. In this
case, no underwriters or agents would be involved.
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Institutional
Purchasers
We may authorize agents, dealers or underwriters to solicit
certain institutional investors to purchase offered securities
on a delayed delivery basis pursuant to delayed delivery
contracts providing for payment and delivery on a specified
future date. The applicable prospectus supplement or pricing
supplement, as the case may be will provide the details of any
such arrangement, including the offering price and commissions
payable on the solicitations.
We will enter into such delayed contracts only with
institutional purchasers that we approve. These institutions may
include commercial and savings banks, insurance companies,
pension funds, investment companies and educational and
charitable institutions.
Indemnification;
Other Relationships
We may have agreements with agents, underwriters, dealers and
remarketing firms to indemnify them against certain civil
liabilities, including liabilities under the Securities Act.
Agents, underwriters, dealers and remarketing firms, and their
affiliates, may engage in transactions with, or perform services
for, us in the ordinary course of business. This includes
commercial banking and investment banking transactions.
Market
Making, Stabilization and Other Transactions
There is currently no market for any of the offered securities
other than the common stock, which is listed on The NASDAQ
Global Market. If the offered securities are traded after their
initial issuance, they may trade at a discount from their
initial offering price, depending upon prevailing interest
rates, the market for similar securities and other factors.
While it is possible that an underwriter could inform us that it
intended to make a market in the offered securities, such
underwriter would not be obligated to do so, and any such market
making could be discontinued at any time without notice.
Therefore, no assurance can be given as to whether an active
trading market will develop for the offered securities. We have
no current plans for listing of the debt securities, rights,
preferred stock, depositary shares, warrants, purchase contracts
or units on any securities exchange or on the National
Association of Securities Dealers, Inc. automated quotation
system; any such listing with respect to any particular debt
securities, preferred stock or warrants will be described in the
applicable prospectus supplement or pricing supplement, as the
case may be.
In connection with any offering, the underwriters may purchase
and sell shares of common stock in the open market. These
transactions may include short sales, syndicate covering
transactions and stabilizing transactions. Short sales involve
syndicate sales of common stock in excess of the number of
shares to be purchased by the underwriters in the offering,
which creates a syndicate short position. Covered
short sales are sales of shares made in an amount up to the
number of shares represented by the underwriters
over-allotment option. In determining the source of shares to
close out the covered syndicate short position, the underwriters
will consider, among other things, the price of shares available
for purchase in the open market as compared to the price at
which they may purchase shares through the over-allotment
option. Transactions to close out the covered syndicate short
involve either purchases of the common stock in the open market
after the distribution has been completed or the exercise of the
over-allotment option. The underwriters may also make
naked short sales of shares in excess of the
over-allotment option. The underwriters must close out any naked
short position by purchasing shares of common stock in the open
market. A naked short position is more likely to be created if
the underwriters are concerned that there may be downward
pressure on the price of the shares in the open market after
pricing that could adversely affect investors who purchase in
the offering. Stabilizing transactions consist of bids for or
purchases of shares in the open market while the offering is in
progress for the purpose of pegging, fixing or maintaining the
price of the securities.
In connection with any offering, the underwriters may also
engage in penalty bids. Penalty bids permit the underwriters to
reclaim a selling concession from a syndicate member when the
securities originally sold by the syndicate member are purchased
in a syndicate covering transaction to cover syndicate short
positions. Stabilizing transactions, syndicate covering
transactions and penalty bids may cause the price of the
securities to be higher than it would be in the absence of the
transactions. The underwriters may, if they commence these
transactions, discontinue them at any time.
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Any underwriters who are qualified market makers on The NASDAQ
Global Market may engage in passive market making transactions
in the securities on The NASDAQ Global Market in accordance with
Rule 103 of Regulation M. Passive market makers must
comply with applicable volume, price and other limitations of
Rule 103.
Fees and
Commissions
In compliance with the guidelines of the National Association of
Securities Dealers, Inc., or the NASD, the aggregate maximum
discount, commission or agency fees or other items constituting
underwriting compensation to be received by any NASD member or
independent broker-dealer will not exceed 8% of any offering
pursuant to this prospectus and any applicable prospectus
supplement or pricing supplement, as the case may be; however,
it is anticipated that the maximum commission or discount to be
received in any particular offering of securities will be
significantly less than this amount.
CERTAIN
LEGAL MATTERS
In connection with particular offerings of the securities in the
future, and if stated in the applicable prospectus supplements,
the validity of those securities will be passed upon for us by
Jones Day, as our counsel, and for any underwriters or agents,
by counsel named in the applicable prospectus supplement.
EXPERTS
The financial statements and managements assessment of the
effectiveness of internal control over financial reporting
(which is included in Managements Report on Internal
Control Over Financial Reporting) incorporated in this
prospectus by reference to the Annual Report on
Form 10-K
for the year ended March 31, 2006 have been so incorporated
in reliance on the report (which contains an explanatory
paragraph relating to our ability to continue as a going concern
as described in Note 1 to our financial statements and an
adverse opinion on the effectiveness of internal control over
financial reporting) of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference in
this prospectus the information in our documents that we file
with the SEC, which means that we disclose important information
to you by referring you to documents that we have previously
filed with the SEC or documents that we will file with the SEC
in the future. The information incorporated by reference is
considered to be part of this prospectus, and information in
documents that we file later with the SEC will automatically
update and supersede information in this prospectus. We
incorporate by reference the documents listed below into this
prospectus, and any future filings made by us with the SEC under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until
we close this offering, including all filings made after the
date of the initial registration statement until we sell all of
the securities. We hereby incorporate by reference the following
documents:
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our Annual Report on
Form 10-K
for the fiscal year ended March 31, 2006, filed with the
SEC on June 29, 2006 and the portions of the Proxy
Statement dated July 28, 2006, as amended, that are
incorporated by reference into the
Form 10-K;
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our Quarterly Reports on
Form 10-Q
for the fiscal quarters ended June 30, 2006, filed with the
SEC on August 8, 2006, September 30, 2006, filed with
the SEC on November 9, 2006; and December 31, 2006,
filed with the SEC on February 7, 2007;
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our Current Report on
Form 8-K,
filed with the SEC on April 20, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on June 1, 2006;
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our Current Report on
Form 8-K
(excluding the information set forth in Item 2.02 and
Exhibit 99.2), filed with the SEC on June 29, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on July 6, 2006;
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23
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our Current Report on
Form 8-K,
filed with the SEC on August 4, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on August 8, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on August 23, 2006;
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our Current Report on
Form 8-K/A,
filed with the SEC on August 24, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on August 28, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on September 19, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on September 26, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on October 20, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on November 6, 2006;
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our Current Report on
Form 8-K
(excluding the information set forth in Item 2.02 and
Exhibit 99.1), filed with the SEC on November 9, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on November 30, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on December 22, 2006;
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our Current Report on
Form 8-K,
filed with the SEC on January 11, 2007;
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our Current Report on
Form 8-K,
filed with the SEC on January 26, 2007;
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our Current Report on
Form 8-K,
filed with the SEC on March 27, 2007;
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our Current Report on
Form 8-K,
filed with the SEC on March 30, 2007; and
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the description of our common stock and warrants set forth in a
registration statement on
Form 8-A,
filed on May 6, 2004.
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Any statement contained in a document incorporated or deemed to
be incorporated by reference in this prospectus is modified or
superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded does not,
except as so modified or superseded, constitute a part of this
prospectus.
You may request a copy of these filings, at no cost, by written
or oral request made to us at the following address or telephone
number:
Exide Technologies
13000 Deerfield Parkway
Building 200
Alpharetta, GA 30004
(678) 566-9000
Attention: Corporate Secretary
WHERE YOU
CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and current reports, prospectus and
other information with the SEC. You may read and copy any
materials that we file with the SEC at the SECs public
reference room at 100 F Street, N.E., Washington, DC. Please
call the SEC at
1-800-SEC-0330
for more information about the operation of the public reference
rooms. The SEC also maintains an internet website, at
http://www.sec.gov, that contains our filed reports, proxy and
information statements and other information that we file
electronically with the SEC. Additionally, we make these filings
available, free of charge, on our website at
http://www.exide.com as soon as reasonably practicable after we
electronically file such materials with, or furnish them to, the
SEC. The information on our website, other than these filings,
is not, and should not be, considered part of this prospectus
and is not incorporated by reference into this document.
24
Common Stock
Preferred Stock
Rights
Warrants
Depositary Shares
Purchase Contracts
Units
Debt Securities
$500,000,000
PROSPECTUS
,
2007
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth the estimated fees and expenses
in connection with the shelf registration of an assumed amount
of $500,000,000 of securities registered under this registration
statement, other than any underwriting discounts and
commissions. The actual amounts of such fees and expenses will
be determined from time to time.
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SEC registration fee
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$
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15,350
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Legal fees and expenses
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20,000
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Accounting fees and expenses
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10,000
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Printing and engraving expenses
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30,000
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Fees of trustee, registrar and
transfer agent
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25,000
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Miscellaneous expenses(1)
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50,000
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Total
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$
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150,350
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(1) |
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Includes estimate of blue sky fees and expenses and NASD filing
fees. |
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Item 15.
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Indemnification
of Directors and Officers.
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We are incorporated under the laws of the State of Delaware.
Section 145 of the Delaware General Corporation Law
provides that a corporation may indemnify directors and
officers, as well as other employees and individuals, against
expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
such persons in connection with any threatened, pending or
completed actions, suits or proceedings in which such persons
are made a party by reason of being or having been a director,
officer, employee or agent to the corporation. The Delaware
General Corporation Law provides that Section 145 is not
excluding other rights to which those seeking indemnification
may be entitled under any certificate of incorporation, bylaws,
agreement, vote of stockholders or disinterested directors or
otherwise. Our bylaws provide for indemnification by us of our
directors, officers and employees to the fullest extent
permitted by the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law
permits a corporation to provide in its certificate of
incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the
directors duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation
of law, (iii) for unlawful payments of dividends or
unlawful stock repurchases, redemptions or other distributions
or (iv) for any transactions from which the director
derived an improper personal benefit. Our certificate of
incorporation provides for such limitations of liability to the
fullest extent permitted by Delaware General Corporation Law.
We have entered into indemnification agreements with certain of
our officers and all members of our board of directors. The
indemnification agreements provide that we will indemnify our
officers and directors party thereto against any losses,
expenses and taxes arising from any action taken against the
officers and directors by reason of or relating to their status
or actions taken in their capacity as our officers or directors.
We are not responsible for indemnifying officers and directors
for any action initiated or brought voluntarily by any officer
or director against us or any of our employees.
We maintain standard policies of insurance under which coverage
is provided (i) to our directors and officers against loss
arising from claims made by reason of breach of duty or other
wrongful act and (ii) to us with respect to payments which
may be made by us to such directors and officers pursuant to the
above indemnification provision or otherwise as a matter of law.
II-1
The list of exhibits in the Exhibit Index to this report is
incorporated herein by reference.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii)
and (1)(iii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission
by the registrants 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 registrants 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 that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus
that is part of the registration
II-2
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
prior to such effective date.
(5) That, for the purpose of determining liability of the
registrants under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, in a primary
offering of securities of the undersigned registrants 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 registrants
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 registrants 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 registrants or used
or referred to by the undersigned registrants;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrants or their securities provided by or
on behalf of the undersigned registrants; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrants to the purchaser.
(6) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrants
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(7) To file an application for the purpose of determining
the eligibility of the trustee to act under
subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
(8) To supplement the prospectus, after the expiration of
the subscription period, to set forth the results of the
subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities
to be purchased by the underwriters and the terms of any
subsequent reoffering thereof. If any public offering by the
underwriters is to be made on terms differing from those set
forth on the cover page of the prospectus, a post-effective
amendment will be filed to set forth the terms of such offering.
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 registrants has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Alpharetta, State of Georgia, on March 30, 2007.
EXIDE TECHNOLOGIES
Gordon A. Ulsh
President, Chief Executive Officer and Director
POWER OF
ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Barbara A. Hatcher and
Brad S. Kalter and each of them, his or her true and lawful
attorneys-in-fact
and agents, each with full power of substitution and
resubstitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this registration
statement (and any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended,
for the offering which this Registration Statement relates), and
to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said
attorneys-in-fact
agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
ratifying and confirming all that said
attorneys-in-fact
and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
* * * *
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons in the capacities indicated on the dates indicated.
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Signatures
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Title
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Date
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/s/ Gordon
A. Ulsh
Gordon
A. Ulsh
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President, Chief Executive Officer
and Director (Principal Executive Officer)
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March 30, 2007
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/s/ Francis
M. Corby
Jr.
Francis
M. Corby Jr.
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Executive Vice President and Chief
Financial Officer (Principal Financial Officer)
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March 30, 2007
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/s/ Phillip
A. Damaska
Phillip
A. Damaska
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Senior Vice President and
Corporate Controller (Principal Accounting Officer)
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March 30, 2007
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/s/ John
P. Reilly
John
P. Reilly
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Chairman of the Board of Directors
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March 30, 2007
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/s/ Herbert
F. Aspbury
Herbert
F. Aspbury
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Director
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March 30 2007
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II-4
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Signatures
|
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Title
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Date
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/s/ Michael
R.
DAppolonia
Michael
R. DAppolonia
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Director
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March 30, 2007
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/s/ David
S. Ferguson
David
S. Ferguson
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Director
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March 30, 2007
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/s/ Paul
W. Jennings
Paul
W. Jennings
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Director
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March 30, 2007
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/s/ Joseph
V. Lash
Joseph
V. Lash
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Director
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March 30, 2007
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/s/ Michael
P. Ressner
Michael
P. Ressner
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Director
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March 30, 2007
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/s/ Carroll
R. Wetzel
Carroll
R. Wetzel
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Director
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March 30, 2007
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II-5
EXHIBIT INDEX
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Exhibit No.
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Description
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*1
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.1
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Form of underwriting or purchase
agreement
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3
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.1
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Amended and Restated Certificate
of Incorporation (incorporated by reference to Exhibit 3.1
to our Quarterly Report on
Form 10-Q
filed with the SEC on November 9, 2006).
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3
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.2
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Amended and Restated Bylaws
(incorporated by reference to Exhibit 3.2 to our Annual
Report on
Form 10-K
filed with the SEC on June 29, 2006).
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*4
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.1
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Form of subscription rights
certificate
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*4
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.2
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Form of subscription agent
agreement
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*4
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.3
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|
Form of indenture for debt
securities
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*4
|
.4
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|
Form of debt securities
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|
*4
|
.5
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|
Form of certificate of
designations for preferred stock
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|
*4
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.6
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|
Form of certificate for preferred
stock
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*4
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.7
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|
Form of depositary receipt
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*4
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.8
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|
Form of depositary agreement
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*4
|
.9
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|
Form of warrant
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*4
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.10
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|
Form of warrant agreement
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*4
|
.11
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|
Form of purchase contract
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*4
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.12
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|
Form of unit certificate
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|
*4
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.13
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|
Form of unit agreement
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|
5
|
.1
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|
Opinion of Jones Day
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12
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.1
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|
Statement Regarding Computation of
Ratio of Earning to Fixed Charges
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23
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.1
|
|
Consent of Jones Day (included in
Exhibit 5.1)
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|
23
|
.2
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|
Consent of PricewaterhouseCoopers
LLP
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|
24
|
.1
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|
Power of Attorney (included in
signature page)
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|
*25
|
.1
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|
Form T-1
Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, by the trustee under the Indenture
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* |
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To be filed by an amendment or as an exhibit to a report filed
under the Securities Exchange Act of 1934 and incorporated by
reference herein. |