As filed with the Securities and Exchange Commission on June 12, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CA, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
(State or Other Jurisdiction of Incorporation or Organization) |
13-2857434
(I.R.S. Employer Identification Number) |
One CA Plaza
Islandia, New York 11749-7000
(800) 225-5224
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)
Amy Fliegelman Olli, Esq.
Executive Vice President and General Counsel
One CA Plaza
Islandia, New York 11749-7000
(800) 225-5224
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Todd W. Eckland, Esq.
Pillsbury Winthrop Shaw Pittman LLP
1540 Broadway
New York, New York 10036-4039
Telephone: (212) 858-1000
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, 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. ý
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. ý
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act (Check one):
| Large accelerated filer ý | Accelerated filer o |
Non-accelerated filer
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(Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Title of each class of
securities to be registered |
Amount to be registered/Proposed maximum offering price per unit/
Proposed maximum aggregate offering price/Amount of registration fee |
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| Senior Debt Securities | (2) | |
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| Senior Subordinated Debt Securities | (2) | |
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| Junior Subordinated Debt Securities | (2) | |
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| Preferred Stock, Class A, without par value | (2) | |
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| Common Stock, par value $.10 per share(1) | (2) | |
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Prospectus
CA, Inc.
Senior Debt Securities
Senior Subordinated Debt Securities
Junior Subordinated Debt Securities
Preferred Stock
Common Stock
We may offer from time to time, in one or more offerings, senior debt securities, senior subordinated debt securities, junior subordinated debt securities, preferred stock or common stock. The securities we may offer may be convertible into or exchangeable for our other securities and may be sold separately or as units with our other securities. This prospectus describes the general terms of these securities and the general manner in which we will offer them. We will provide a supplement to accompany this prospectus each time we offer any of these securities. The accompanying prospectus supplement will describe the specific manner in which we will offer such securities and may also supplement, update or amend information contained in this prospectus. You should read this prospectus and the accompanying prospectus supplement carefully before you invest.
Our common stock is listed on The Nasdaq Global Select Market under the symbol "CA."
Investing in our securities involves risks. See "Risk Factors" on page 1 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the 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 June 12, 2008.
In making your investment decision, you should rely only on the information contained or incorporated by reference in this prospectus or the accompanying prospectus supplement or any free writing prospectus and the registration statement of which this prospectus is a part. We have not authorized anyone to provide you with any other information. If you receive any other information, you should not rely on it.
We are not offering to sell these securities in places where offers and sales are not permitted.
You should assume that the information contained or incorporated by reference in this prospectus and the accompanying prospectus supplement is accurate only as of the dates of those documents. Our business, financial condition, results of operations and prospects may have changed since those dates.
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Page
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About this Prospectus |
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1 |
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Risk Factors |
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1 |
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Our Company |
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1 |
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Where You Can Find More Information |
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Use of Proceeds |
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3 |
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Ratios of Earnings to Fixed Charges |
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3 |
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Description of Senior Debt Securities |
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Description of Subordinated Debt Securities |
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Description of Preferred Stock |
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Description of Common Stock |
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Description of Units |
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23 |
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Book-Entry Delivery and Settlement |
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23 |
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Plan of Distribution |
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Validity of Securities |
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Experts |
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This prospectus is part of a registration statement that we filed with the SEC using a "shelf" registration, or continuous offering, process. Under this shelf registration process, we may, at any time and from time to time, issue and sell, in one or more offerings, the securities described in this prospectus.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that accompanies this prospectus that will contain specific information about the terms of that offering and the offered securities. The accompanying prospectus supplement may also add, update or change information contained in this prospectus. Any statement that we make in this prospectus will be modified or superseded by any inconsistent statement made by us in the accompanying prospectus supplement. The registration statement we filed with the SEC includes exhibits that provide more detail of the matters discussed in this prospectus. You should read this prospectus and the related exhibits filed with the SEC and the accompanying prospectus supplement, together with additional information described under "Where You Can Find More Information" before making your investment decision.
Unless the context otherwise requires, references in this prospectus and the accompanying prospectus supplement to "we," "us" and "our" refer to CA, Inc.
Investing in our securities involves risk. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed under "Risk Factors" in the accompanying prospectus supplement and in the documents we incorporate by reference in this prospectus and the accompanying prospectus supplement.
We are one of the world's largest providers of enterprise software. Our products and solutions are designed to help our customers govern, manage and secure information technology systems and services in highly complex computing environments.
Our principal executive offices are located at One CA Plaza, Islandia, New York 11749-7000, and our main telephone number is (800) 225-5224. Our website is located at http://www.ca.com. Our website and the information contained on our website are not part of this prospectus.
Where You Can Find More Information
We have filed a registration statement on Form S-3 with the SEC under the Securities Act of 1933. This prospectus is part of the registration statement but the registration statement includes and incorporates by reference additional information and exhibits. We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy the registration statement and any document we file with the SEC at the public reference room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a web site that contains reports, proxy and information statements and other information regarding companies, such as ours, that file documents electronically with the SEC. The address of that site on the world wide web is http://www.sec.gov. The information on the SEC's web site is not part of this prospectus, and any references to this web site or any other web site are inactive textual references only.
The SEC permits us to "incorporate by reference" the information contained in documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated by
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reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus. Later information that we file with the SEC will automatically update and supersede the information that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus from the date those documents are filed. We have filed with the SEC and incorporate by reference in this prospectus:
We also incorporate by reference all additional documents that we file with the SEC under the terms of Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 that are made prior to the termination of any offering of securities offered by this prospectus. We are not, however, incorporating, in each case, any documents or information that we are deemed to furnish and not file in accordance with SEC rules.
You may request a copy of any or all of the documents incorporated by reference but not delivered with this prospectus, at no cost, by writing or telephoning us at the following address and number: Investor Relations, CA, Inc., One CA Plaza, Islandia, New York, 11749, telephone (800) 225-5224. We will not, however, send exhibits to those documents, unless the exhibits are specifically incorporated by reference in those documents.
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Unless we state otherwise in the accompanying prospectus supplement, we intend to use the net proceeds from the sale of the securities for general corporate purposes. General corporate purposes may include repayment or redemption of existing indebtedness and future acquisitions and strategic investment opportunities. Pending the application of net proceeds, we expect to invest the net proceeds in investment grade, interest-bearing securities.
Ratios of Earnings to Fixed Charges
The following table sets forth our ratios of earnings to fixed charges for the periods indicated:
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Fiscal year ended March 31,
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2004
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2005
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2007
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2008
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| Ratio of earnings to fixed charges(1) | — | (2) | 1.15 | 1.77 | 1.81 | 4.75 | |||||
| Deficiency of earnings to fixed charges(1) | $ | 114 | (2) | — | — | — | — | ||||
For purposes of this computation, earnings are defined as our pre-tax earnings or loss from continuing operations plus our fixed charges. Fixed charges are the sum of:
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Description of Senior Debt Securities
General
The following is a summary of the general terms of the senior debt securities we may issue under an indenture, dated as of June 1, 2008, between us and U.S. Bank National Association, as trustee. The terms of the senior debt securities include those expressly set forth in the indenture and those made part of the indenture by referencing the Trust Indenture Act of 1939. The particular terms of the senior debt securities of any series and the extent, if any, to which such general terms may apply to the senior debt securities of such series will be described in the prospectus supplement applicable to the senior debt securities of such series. If there is any inconsistency between the information in this prospectus and the prospectus supplement applicable to the debt securities of such series, you should rely on the information in the accompanying prospectus supplement. This description of senior debt securities provides an overview of the material provisions of the senior debt securities and, to the extent applicable to the senior debt securities, the indenture. Since this description of senior debt securities is a summary, you should refer to the indenture for a complete description of our obligations and the rights of a holder of senior debt securities thereunder. We have filed a copy of the indenture as an exhibit to the registration statement of which this prospectus is a part.
When we refer to "we," "us" or "our" in this section, we refer only to CA, Inc., the issuer of the senior debt securities, and not to its subsidiaries. Unless otherwise defined in this prospectus, capitalized terms used in this "Description of Senior Debt Securities—Covenants" section are defined under "—Definitions" below.
The senior debt securities will be senior unsecured and unsubordinated indebtedness and will rank equally with all of our existing and future senior unsecured and unsubordinated indebtedness. However, the senior debt securities are structurally subordinated to the indebtedness of our subsidiaries and effectively subordinated to our secured debt to the extent of the value of the assets securing such indebtedness.
There is no requirement under the indenture that future issuances of our senior debt securities be issued under the indenture, and we will be free to use other indentures or instruments, which may contain provisions different from those contained in the indenture or applicable to one or more series of senior debt securities issued thereunder, in connection with future issuances of such other senior debt securities.
The indenture does not limit the aggregate principal amount of senior debt securities that may be issued thereunder. The indenture provides that the senior debt securities may be issued in one or more series. The senior debt securities may be issued at various times and may have differing maturity dates and may bear different interest rates. The prospectus supplement applicable to the senior debt securities of any series will describe:
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Principal of and premium, if any, and interest on the senior debt securities will be payable, and the senior debt securities may be exchanged or transferred, at our office or agency in the Borough of Manhattan, The City of New York (which initially shall be the corporate trust office of the trustee, at 100 Wall Street, Suite 1600, New York, New York 10005), except that, at our option, payment of interest may be made by check mailed to the registered holders of the senior debt securities at their registered addresses. No service charge will be made for any registration of transfer or exchange of senior debt securities, but we may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in connection with such transfer or exchange.
In any case where the date of payment of the principal of or premium, if any, or interest on the senior debt securities of any series, including the date, if any, fixed for redemption or repurchase of the senior debt securities of such series, shall not be a "business day" (as defined below), then payment of principal, premium or interest need not be made on that date at such place but may be made on the next succeeding business day, with the same force and effect as if made on the applicable payment date or the date fixed for redemption or repurchase, and no interest shall accrue for the period after that date. A "business day" shall mean a day that is not, in New York City, a Saturday, Sunday, a legal holiday or a day on which banking institutions are authorized or obligated by law to close.
Ranking
The senior debt securities will be senior unsecured and unsubordinated indebtedness and will rank equally with all of our existing and future senior unsecured and unsubordinated indebtedness. However, the senior debt securities will be structurally subordinated to the indebtedness of our subsidiaries and effectively subordinated to our secured indebtedness to the extent of the value of the assets securing such indebtedness.
We are obligated to pay reasonable compensation to the trustee and to indemnify the trustee against certain losses, liabilities and expenses incurred by the trustee in connection with its duties relating to the senior debt securities. The trustee's claims for these payments will generally be senior to those of holders of senior debt securities in respect of all funds collected or held by the trustee.
The senior debt securities are exclusively our obligations. Our cash flow and our ability to service our indebtedness, including the senior debt securities, is partially dependent upon the earnings of our subsidiaries. In addition, we are particularly dependent on the distribution of earnings, loans or other payments by our subsidiaries to us. Our subsidiaries are separate and distinct legal entities. Our subsidiaries will have no obligation to pay any amounts due on any series of senior debt securities or to provide us with funds for our payment obligations, whether by dividends, distributions, loans or other payments. In addition, any payment of dividends, distributions, loans or advances by our subsidiaries to us could be subject to statutory or contractual restrictions. Payments to us by our subsidiaries will also be contingent upon our subsidiaries' earnings and business considerations. Our right to receive any
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assets of any subsidiary upon its liquidation or reorganization, and, therefore, our right to participate in those assets, will be effectively subordinated to the claims of that subsidiary's creditors, including trade creditors. In addition, even if we were a creditor of any of our subsidiaries our right as a creditor would be subordinate to any security interest in the assets of our subsidiaries and any indebtedness of our subsidiaries senior to the indebtedness held by us.
Covenants
Unless otherwise indicated in the prospectus supplement applicable to the senior debt securities of any series and except as discussed below, we are not restricted by the indenture from:
We are not required under the indenture to maintain any financial ratios or specified levels of net worth or liquidity.
The indenture contains various covenants, including, among others, the following:
Limitation on Liens
So long as the senior debt securities of any series are outstanding under the indenture, neither we nor any Restricted Subsidiary will, directly or indirectly, issue, incur, create, assume or guarantee any indebtedness secured by a mortgage, security interest, pledge, lien, charge or other encumbrance upon any Principal Property or upon any shares of stock or indebtedness of any Restricted Subsidiary (whether such Principal Property, shares or indebtedness are now existing or owned or hereafter created or acquired), unless prior to or at the same time the senior debt securities of such series are equally and ratably secured with or, at our option, prior to such secured indebtedness. Mortgages, security interests, pledges, liens, charges and other encumbrances are collectively referred to in this prospectus as "mortgages."
This restriction does not apply to:
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We and any Restricted Subsidiary are permitted to issue, incur, create, assume or guarantee indebtedness secured by a mortgage that would otherwise not be permitted without equally and ratably securing the senior debt securities of such series then outstanding under the indenture, if, after giving effect thereto and any concurrent retirement of indebtedness, the aggregate amount of all indebtedness secured by mortgages (not including mortgages permitted under clauses (1) through (9) above) does not at such time exceed 15% of Consolidated Net Assets.
Limitation on Sale/Leaseback Transactions
So long as the senior debt securities of any series are outstanding under the indenture, neither we nor any Restricted Subsidiary will enter into any "sale/leaseback transaction" (as defined below) with respect to any Principal Property, whether now owned or hereafter acquired by us or any Restricted Subsidiary, unless:
This restriction does not apply to sale/leaseback transactions:
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A " sale/leaseback transaction " means an arrangement relating to property now owned or hereafter acquired whereby either we transfer, or any Restricted Subsidiary transfers, such property to a person and either we or any Restricted Subsidiary leases it back from such person.
Notwithstanding the restrictions outlined in the preceding paragraphs, we and any Restricted Subsidiary will be permitted to enter into sale/leaseback transactions that would otherwise be subject to such restrictions, without complying with the requirements of clauses (a) and (b) above, if, after giving effect thereto, the aggregate amount of all Attributable Debt with respect to sale/leaseback transactions existing at such time that could not have been entered into except for the provisions described in this paragraph, together with the aggregate amount of all outstanding indebtedness secured by mortgages permitted by any of clauses (1) through (9) under "—Limitation on Liens" above, does not exceed 15% of Consolidated Net Assets.
Merger, Consolidation or Sale of Assets
We may, without the consent of the holders of any outstanding series of senior debt securities, consolidate with, sell, lease, convey or otherwise transfer all or substantially all of our assets to, or merge with or into, any other person or entity, provided that:
The successor person or entity will succeed to us, and be substituted for us, and may exercise all of our rights and powers under the indenture, but in the case of a lease of all or substantially all of our assets we will not be released from the obligation to pay the principal of and premium, if any, and interest on the senior debt securities.
Defaults
Unless otherwise indicated in the prospectus supplement applicable to the senior debt securities of any series, each of the following is an " event of default " with respect to the senior debt securities of such series under the indenture:
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The foregoing constitute events of default whatever the reason for any such event of default and whether it is voluntary or involuntary or is effected by operation of any law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
If an event of default with respect to the senior debt securities of any series, other than an event of default described in clause (5) above, occurs and is continuing, then the trustee or the holders of at least 25% in aggregate principal amount of the outstanding senior debt securities of such series by notice to us may declare the principal of and accrued but unpaid interest on all the senior debt securities of such series to be due and payable. Upon this declaration, principal of and interest on the senior debt securities of such series will be immediately due and payable. If an event of default described in clause (5) above occurs and is continuing, the principal of and accrued but unpaid interest on all the senior debt securities of such series will become immediately due and payable without any declaration or other act on the part of the trustee or any holders. Under some circumstances, the holders of a majority in aggregate principal amount of the outstanding senior debt securities of such series may rescind any acceleration with respect to the senior debt securities of such series and its consequences.
If an event of default occurs and is continuing, the trustee, in conformity with its duties under the indenture, will exercise all rights or powers under the indenture at the request or direction of any of the holders, provided the holders provide the trustee with a reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. Except to enforce the right to receive payment of principal, premium, if any, or interest when due, no holder of senior debt securities of any series may pursue any remedy with respect to the indenture or the senior debt securities unless:
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Generally, the holders of a majority in principal amount of the outstanding senior debt securities of a series are given the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or of exercising any trust or power conferred on the trustee with respect to the senior debt securities of such series. The trustee, however, may refuse to follow any direction that conflicts with law or the indenture or that the trustee determines is unduly prejudicial to the rights of any other holder of senior debt securities of such series or that would expose the trustee to personal liability.
If a default with respect to the senior debt securities of a series occurs and is continuing and is known to the trustee, the trustee must mail to each holder of any debt security of such series notice of the default within 90 days after it is known to the trustee. Except in the case of a default in the payment of principal of, premium, if any, or interest on any debt security of such series, the trustee may withhold notice if the trustee determines in good faith that withholding notice is not opposed to the interests of the holders. In addition, we are required to deliver to the trustee, within 120 days after the end of each fiscal year, a certificate indicating whether the signers of the certificate know of any default that occurred during the previous fiscal year. We also are required to notify the trustee within 30 days of the occurrence of any event that would constitute various defaults, their status and what action we are taking or propose to take in respect of these defaults.
Amendments and Waivers
We and the trustee may amend the indenture as to the senior debt securities of any series with the consent of the holders of a majority in principal amount of the senior debt securities of such series then outstanding. Any past default or compliance with any provisions of the indenture or the senior debt securities of such series may be waived with the consent of the holders of a majority in principal amount of the senior debt securities of such series then outstanding. These consents may be obtained through a tender offer or exchange offer for the senior debt securities of such series.
Without the consent of each holder of an outstanding debt security of any series, we may not amend the indenture as to such series to:
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We and the trustee may, however, amend or supplement the indenture without the consent of any holder of the senior debt securities of any series as to:
It is not necessary that any consent of the holders of the senior debt securities of any series required under the indenture approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment.
Transfer and Exchange
A holder may transfer or exchange senior debt securities of a series in accordance with the indenture. Upon any transfer or exchange, the registrar of the senior debt securities and the trustee may require a holder to furnish appropriate endorsements and transfer documents and we may require a holder to pay any taxes required by law or permitted by the indenture, including any transfer tax or other similar governmental charge payable as part of the transfer or exchange. We are not required to transfer or exchange any debt security selected for redemption or to transfer or exchange any debt security for a period of 15 days prior to a selection of senior debt securities to be redeemed. The senior debt securities will be issued in registered form and the registered holder of a debt security will be treated as the owner of the debt security for all purposes.
Defeasance
With respect to the senior debt securities of any series, we may, at any time, terminate all of our obligations under the senior debt securities of such series and the indenture (" legal defeasance "), except for certain obligations, including those respecting the defeasance trust and obligations to register the transfer or exchange of the senior debt securities of such securities, to replace mutilated, destroyed, lost or stolen senior debt securities of such series and to maintain a registrar and paying agent in respect of the senior debt securities of such series. We at any time may terminate our obligations with respect to the senior debt securities of any series under the covenants described under "—Covenants" and the occurrence of an event of default described in clause (4) under "—Defaults" above (" covenant defeasance ").
We may exercise our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option. If we exercise our legal defeasance option, payment of the senior debt securities of
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any series may not be accelerated because of an event of default with respect thereto. If we exercise our covenant defeasance option, payment of the senior debt securities of such series may not be accelerated because of an event of default described in clause (3) (except for the covenant described under "—Covenants—Merger, consolidation or sale of assets") or clause (4) under "—Defaults" above.
To exercise either defeasance option with respect to the senior debt securities of any series:
Concerning the Trustee
U.S. Bank National Association is the trustee under the indenture and is also registrar and paying agent of the senior debt securities.
The indenture contains limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in some cases, or to realize on property received in respect of any of these claims as security or otherwise. The trustee is permitted to engage in other transactions with us and our subsidiaries and affiliates. However, if the trustee acquires any conflicting interest it must either eliminate its conflict within 90 days, apply to the SEC for permission to continue or resign as trustee under the indenture.
Governing Law
The indenture provides that it and the senior debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
Definitions
For purposes of this "Description of Senior Debt Securities" section, the following terms have the following meanings:
" Attributable Debt " means, when used in connection with a sale/leaseback transaction involving a Principal Property, at the time of determination, the lesser of:
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issued under the indenture compounded semi-annually in either case as determined by our principal accounting or financial officer.
For purposes of the foregoing definition, rent shall not include amounts required to be paid by the lessee, whether or not designated as rent or additional rent, on account of or contingent upon maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease that is terminable by the lessee upon the payment of a penalty, such net amount shall be the lesser of (a) the net amount determined assuming termination upon the first date such lease may be terminated (in which case the net amount shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (b) the net amount determined assuming no such termination.
" Consolidated Net Assets " means, as of any particular time, the aggregate amount of assets at the end of our most recently completed fiscal quarter after deducting therefrom all current liabilities except for:
all as set forth on the most recent consolidated balance sheet of us and our consolidated subsidiaries and computed in accordance with GAAP.
" default " means any event that is, or after notice or passage of time or both would be, an event of default under the indenture.
" indebtedness " means, with respect to any person, obligations (other than Nonrecourse Obligations) of such person for borrowed money or evidenced by bonds, debentures, notes or similar instruments.
" Nonrecourse Obligation " means indebtedness or other obligations substantially related to (a) the acquisition of assets not previously owned by us or any Restricted Subsidiary or (b) the financing of a project involving the development or expansion of our properties or those of any Restricted Subsidiary, as to which the obligee with respect to such indebtedness or obligation has no recourse to us or any Restricted Subsidiary or any of our assets or those of any Restricted Subsidiary other than the assets that were acquired with the proceeds of such transaction or the project financed with the proceeds of such transaction (and the proceeds thereof).
" person " means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or political subdivision thereof.
" Principal Property " means the land, land improvements, buildings and fixtures (to the extent they constitute real property interests and including any leasehold interest therein) constituting the principal corporate office, any manufacturing plant or any manufacturing facility (whether now owned or hereafter acquired) that:
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" Restricted Subsidiary " means any of our direct or indirect subsidiaries that owns any Principal Property; provided, however , that the term " Restricted Subsidiary " does not include:
" Voting Stock " of a person means all classes of any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such person, including any preferred stock and limited liability or partnership interests (whether general or limited), but excluding any senior debt securities convertible into such equity, to the extent then outstanding and normally entitled to vote in the election of such person's directors, managers or trustees, as applicable.
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Description of Subordinated Debt Securities
We may issue senior subordinated debt securities or junior subordinated debt securities, in one or more series, under an indenture or indentures between us and the trustee specified therein. The terms of the senior subordinated or junior subordinated debt securities of such series will be described in the prospectus supplement applicable to the subordinated debt securities of such series, including:
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Description of Preferred Stock
Under our restated certificate of incorporation, the total number of shares of all classes of our capital stock that we have authority to issue is 1,110,000,000 shares, of which 10,000,000 shares shall be our preferred stock, class A, without par value, issuable in one or more series. Our board of directors is authorized, at any time or from time to time, to divide any or all of the shares of our preferred stock, class A, into one or more series, and in the resolution or resolutions establishing a particular series to fix and determine the number of shares and the designation of such series so as to distinguish it from the shares of all other series and classes, and to fix and determine the preferences, voting rights, qualifications, privileges, limitations, options, conversion rights, restrictions and other special or relative rights of our preferred stock, class A, or of such series to the fullest extent now or hereafter permitted by the laws of the State of Delaware. The terms of our preferred stock, class A, or of such series will be described in the prospectus supplement applicable to thereto, including:
Unless otherwise provided in a resolution or resolutions establishing any particular series as described in the prospectus supplement applicable to such series, the aggregate number of authorized shares of our preferred stock, class A, may be increased by an amendment of our restated certificate of incorporation approved solely by a majority vote of the outstanding shares of our common stock (or solely with a lesser vote of the common stock, or solely by action of our board of directors, if permitted by law at the time).
All shares of any one series shall be alike in every particular, except with respect to the accrual of dividends prior to the date of issuance.
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General
The following description of the terms of our common stock and related Rights (as defined below) is not meant to be complete and is qualified entirely by reference to our restated certificate of incorporation and the Rights Agreement (as defined below), which are filed as exhibits to the registration statement of which this prospectus is a part. Under our restated certificate of incorporation, the total number of shares of all classes of our capital stock that we have authority to issue is 1,110,000,000 shares, of which 1,100,000,000 shares will be our common stock, par value $.10 per share. The outstanding shares of our common stock are validly issued, fully paid and nonassessable.
Voting Rights
Each holder of our common stock is entitled to one vote for each share of our common stock held of record on the applicable record date on all matters submitted to a vote of stockholders.
Dividend Rights; Rights upon Liquidation
The holders of our common stock are entitled to receive, from funds legally available for the payment thereof, dividends when and as declared by resolution of our board of directors, subject to any preferential dividend rights granted to the holders of any of our outstanding preferred stock, if any. In the event of liquidation, each share of our common stock is entitled to share pro rata in any distribution of our assets after payment or providing for the payment of liabilities and the liquidation preference of any of our outstanding preferred stock.
Preemptive Rights
Holders of our common stock have no preemptive rights to purchase, subscribe for or otherwise acquire any unissued or treasury shares or other securities.
Anti-Takeover Effects of Provisions of Rights Plan
We are a party to stockholder protection rights agreement dated as of October 16, 2006 between us and Mellon Investor Services LLC, as rights agent (the "Rights Agreement"). Unless otherwise defined in this prospectus, capitalized terms used in this "Description of Common Stock—Anti-Takeover Effects of Provisions of Rights Plan" section are defined under "—Definitions" below.
On October 16, 2006, we declared a dividend of one right (a "Right" and, collectively, the "Rights") for each outstanding share of our common stock of record at the close of business on October 26, 2006, payable in respect of each such share upon the Payment Time or issued thereafter and prior to the Separation Time and thereafter pursuant to options and convertible securities outstanding at the Separation Time. Each Right entitles its registered holder to purchase from us, after the Separation Time, one one-thousandth (1/1,000 th ) of a share of our participating preferred stock, class A, without par value, for the then-current Exercise Price.
The Rights will be evidenced by certificates for our common stock until the Separation Time. The Rights Agreement provides that, until the Separation Time, the Rights will be transferred with and only with our common stock. Certificates for our common stock that are issued after the Payment Time but prior to the Separation Time will evidence one Right for each share of our common stock represented thereby and will contain a legend incorporating by reference the terms of the Rights Agreement. Notwithstanding the absence of the aforementioned legend, certificates evidencing shares of our common stock outstanding as of the Payment Time shall also evidence one Right for each share of our common stock evidenced thereby. Promptly following the Separation Time, separate certificates
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evidencing the Rights will be delivered to holders of record of our common stock at the Separation Time.
The Rights will not be exercisable until the business day following the Separation Time. The Rights will expire on the earliest of (a) the Exchange Time (as defined below), (b) November 30, 2009 and (c) the date on which the Rights are redeemed as described below.
The Exercise Price and the number of Rights outstanding, or in certain circumstances the securities purchasable upon exercise of the Rights, are subject to adjustment from time to time to prevent dilution in the event of a dividend on, or a subdivision or a combination into a smaller number of shares of, or the issuance or distribution of any securities or assets in respect of, in lieu of, or in exchange for, our common stock.
In the event that prior to November 30, 2009 a Flip-in Date occurs, each Right (other than Rights Beneficially Owned (as defined in the Rights Agreement) by the Acquiring Person or any Affiliate or Associate (each as defined in the Rights Agreement) hereof, which Rights shall become void) will constitute the right to purchase from us, upon the exercise thereof in accordance with the terms of the Rights Agreement, that number of shares of our common stock having an aggregate Market Price (as defined in the Rights Agreement) equal to twice the then-current Exercise Price for an amount in cash equal to the then-current Exercise Price. In addition, our board of directors may, at its option, at any time after a Flip-in Date and prior to the time that an Acquiring Person becomes the Beneficial Owner of more than 50% of the outstanding shares of our common stock, elect to exchange all (but not less than all) the then outstanding Rights (other than Rights Beneficially Owned by such Acquiring Person or any Affiliate or Associate thereof, which Rights shall become void) for shares of our common stock at an exchange ratio of one share of our common stock per Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date of the Separation Time. Immediately upon such action by our board of directors (the "Exchange Time"), the right to exercise the Rights will terminate, and each Right will thereafter represent only the right to receive a number of shares of our common stock equal to such exchange ratio.
Whenever we shall become obligated, as described in the preceding paragraph, to issue shares of our common stock upon exercise of or in exchange for Rights, we, at our option, may substitute therefor shares of our participating preferred stock, at a ratio of one one-thousandth (1/1,000 th ) of a share of our participating preferred stock for each share of our common stock so issuable.
In the event that, prior to November 30, 2009, there exists an Acquiring Person that controls our board of directors or Beneficially Owns 90% or more of our common stock and we are involved in (a) a merger, consolidation or statutory share exchange (or enter into an agreement to undertake any of the foregoing) and either (i) such merger, consolidation or statutory share exchange is with such Acquiring Person or any Affiliate or Associate thereof or (ii) any term of such merger, consolidation or share exchange relating to the treatment of our capital stock Beneficially Owned by such Acquiring Person is not identical to the terms of such transaction relating to capital stock Beneficially Owned by other holders or (b) a sale of more than 50% of our assets or earning power, each Right shall constitute the right to purchase from the Flip-over Entity (as defined in the Rights Agreement), upon exercise of such Right in accordance with the Rights Agreement, that number of shares of common stock of the Flip-over Entity having an aggregate Market Price equal to twice the then-current Exercise Price for an amount in cash equal to the then-current Exercise Price.
Our board of directors may, at its option, at any time prior to a Flip-in Date, redeem all (but not less than all) the then outstanding Rights at a price of $0.001 per Right, as provided in the Rights Agreement. Immediately upon the action of our board of directors electing to redeem the Rights, without any further action and without any notice, the right to exercise the Rights will terminate and each Right will thereafter represent only the right to receive such redemption price in cash for each Right so held.
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If we receive a Qualifying Offer and our board of directors does not redeem the Rights or exempt such Qualifying Offer from the requirements of the Rights Plan by the end of 90 business days following the commencement (or, if later, the first existence) of such Qualifying Offer, holders of at least 10% of the then outstanding shares of our common stock may demand that our board of directors take action necessary to arrange a special meeting of stockholders (the "Special Meeting") to vote on exempting such Qualifying Offer from the Rights Plan (the "Special Meeting Demand"). If we receive the Special Meeting Demand within 90 to 120 business days following the commencement (or, if later, the first existence) of such Qualifying Offer, our board of directors shall take such actions as may be necessary to hold the Special Meeting within 90 business days of the Special Meeting Demand (the "Special Meeting Period"), provided that the Special Meeting Period may be extended if, prior to such vote, we enter into an agreement (that is conditioned on the approval by the holders of not less than a majority of the outstanding shares of our common stock) with respect to a merger, recapitalization, share exchange or a similar transaction involving us or the direct or indirect acquisition of more than 50% of our consolidated total assets (a "Definitive Acquisition Agreement"), until the time of the meeting at which our stockholders will be asked to vote on the Definitive Acquisition Agreement.
A Qualifying Offer must remain open for 120 business days and, if a Special Meeting Demand is delivered to our board of directors, for at least ten business days after the date of the Special Meeting or, if the Special Meeting is not held within the Special Meeting Period, for at least ten business days following the end of such period (the "Qualifying Offer Period"); provided, however , that such Qualifying Offer need not remain open longer than (a) the expiration date of any other (i) Qualifying Offer (as such may be extended by public announcement) or (ii) tender offer (as such may be extended by public announcement) with respect to which our board of directors has agreed to redeem the Rights immediately prior to acceptance of our common stock for payment or (b) one business day after our stockholder vote with respect to approval of any Definitive Acquisition Agreement has been officially determined and certified by the inspectors of elections. If the Special Meeting is not held within the Special Meeting Period (or if holders of a majority of the outstanding shares of our common stock vote in favor of exempting such Qualifying Offer from the Rights Plan at such meeting), such Qualifying Offer will be deemed to be exempt from the application of the Rights Plan on the close of business on the tenth business day after the results of such meeting are certified as official (or following the end of the Special Meeting Period, as applicable).
A committee of our independent directors will evaluate the Rights Agreement annually to determine whether it continues to be in the best interests of our stockholders or if the Rights should be redeemed.
The holders of Rights will, solely by reason of their ownership of Rights, have no rights as our stockholders, including the right to vote or to receive dividends.
The Rights will not prevent a takeover of us. However, the Rights may cause substantial dilution to a person or group that acquires 20% or more of our common stock unless the Rights are first redeemed by our board of directors. Nevertheless, the Rights Agreement should not interfere with a transaction that is in our best interests and the best interests of our stockholders because the Rights may be redeemed on or prior to the Flip-in Date, before the consummation of such transaction (including following the Special Meeting held in connection with a Qualifying Offer).
As long as the Rights are attached to our common stock, we will issue one Right with each new share of our common stock so that all such shares of our common stock will have Rights attached.
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Definitions
For purposes of the "Description of Common Stock—Anti-Takeover Effects of Provisions of Rights Plan" section, the following terms have the following meanings:
" Acquiring Person " means any person having Beneficial Ownership of 20% or more of our outstanding common stock, but shall not include:
" business day " means any day other than a Saturday, Sunday or a day on which banking institutions in New York, New York are generally authorized or obligated by law or executive order to close.
" Exercise Price " means $100.00, subject to adjustment in accordance with the terms of the Rights Agreement.
" Flip-in Date " means any Stock Acquisition Date (as defined below) or such later date and time as our board of directors may from time to time fix by resolution adopted prior to the Flip-in Date that would otherwise have occurred. For this purpose, a " Stock Acquisition Date " means the earlier of (a) the first date on which we announce that a person or group has become an Acquiring Person or (b) the date and time on which any Acquiring Person has acquired more than 50% of our common stock.
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" Payment Time " means the later of (a) certification by the New York Stock Exchange to the SEC that the Rights have been approved for listing and registration and (b) November 30, 2006.
" person " shall mean any individual, firm, partnership, limited liability company, association, group (as such term is used in Rule 13d-5 under the Securities Exchange Act of 1934, as such Rule was in effect on the date of the Rights Agreement), corporation or other entity, including any successor (by merger or otherwise) thereof.
" Qualifying Offer " means an offer that is determined by a majority of our independent directors to have (among others) the following characteristics:
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Securities Exchange Act of 1934 will be filed by the offeror in a timely manner during the offer period.
" Separation Time " means the later of (a) the close of business on the tenth business day or such later date as our board of directors may from time to time fix by resolution adopted prior to the Separation Time that would otherwise have occurred, after the date on which any person commences a tender or exchange offer that, if consummated, would result in such person's becoming an Acquiring Person and (b) the time of the first event causing a Flip-in Date to occur; provided that if the foregoing results in the Separation Time being prior to the Payment Time, the Separation Time shall be the Payment Time; and provided further that if a tender or exchange offer described in clause (a) above is cancelled, terminated or otherwise withdrawn prior to the Separation Time without the purchase of any shares of our common stock pursuant thereto, such offer shall be deemed never to have been made.
Delaware Anti-Takeover Statute
We are subject to Section 203 of the Delaware General Corporation Law, which, subject to certain exceptions, prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years following the date that such stockholder became an interested stockholder, unless (a) prior to such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder, (b) upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (i) by persons who are directors and also officers and (ii) by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer or (c) at or subsequent to such time the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2 / 3 % of the outstanding voting stock that is not owned by the interested stockholder.
Section 203 of the Delaware General Corporation Law defines the term "business combination" to include: (a) any merger or consolidation involving the corporation or any of its direct or indirect majority-owned subsidiaries and the interested stockholder or another entity if the merger or consolidation is caused by the interested stockholder; (b) any sale, lease, exchange, mortgage, pledge or transfer of 10% or more of either the aggregate market value of all of the assets of the corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the corporation or any of its direct or indirect majority-owned subsidiaries involving the interested stockholder; (c) subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation or by any of its direct or indirect majority-owned subsidiaries of any stock of the corporation or that subsidiary to the interested stockholder; (d) subject to certain exceptions, any transaction involving the corporation or any of its direct or indirect majority-owned subsidiaries that has the effect of increasing the proportionate share of the stock of any class or series of the corporation or that subsidiary owned by the interested stockholder; or (e) the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation or any of its direct or indirect majority-owned subsidiaries. In general, Section 203 defines an "interested stockholder" as any entity or person owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by such entity or person.
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As specified in the prospectus supplement applicable to any units, we may issue debt securities or shares of preferred stock or common stock as units with any combination of such securities.
Book-Entry Delivery and Settlement
Global Securities
Unless otherwise indicated in the accompanying prospectus supplement, we will issue the securities in the form of one or more global securities in definitive, fully registered, book-entry form. A global security will be deposited with or on behalf of The Depository Trust Company, or DTC, and registered in the name of Cede & Co., as nominee of DTC.
DTC, Clearstream and Euroclear
Beneficial interests in global securities will be represented through book-entry accounts of financial institutions acting on behalf of beneficial owners as direct and indirect participants in DTC. Investors may hold interests in a global securities through either DTC (in the United States), Clearstream Banking, société anonyme, Luxembourg, which we refer to as Clearstream, or Euroclear Bank S.A./N.V., as operator of the Euroclear System, which we refer to as Euroclear, in Europe, either directly if they are participants in such systems or indirectly through organizations that are participants in such systems. Clearstream and Euroclear will hold interests on behalf of their participants through customers' securities accounts in Clearstream's and Euroclear's names on the books of their U.S. depositaries, which in turn will hold such interests in customers' securities accounts in the U.S. depositaries' names on the books of DTC.
DTC has advised us:
Clearstream has advised us that it is incorporated under the laws of Luxembourg as a professional depositary. Clearstream holds securities for its customers and facilitates the clearance and settlement of securities transactions between its customers through electronic book-entry changes in accounts of its customers, thereby eliminating the need for physical movement of certificates. Clearstream provides to
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its customers, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities and securities lending and borrowing. Clearstream interfaces with domestic markets in several countries. As a professional depositary, Clearstream is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Section. Clearstream customers are recognized financial institutions around the world, including underwriters, securities brokers and dealers, banks, trust companies, clearing corporations and other organizations and may include various underwriters. Indirect access to Clearstream is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Clearstream customer either directly or indirectly.
Euroclear has advised us that it was created in 1968 to hold securities for participants of Euroclear and to clear and settle transactions between Euroclear participants through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates and any risk from lack of simultaneous transfers of securities and cash. Euroclear provides various other services, including securities lending and borrowing and interfaces with domestic markets in several countries. Euroclear is operated by Euroclear Bank S.A./N.V., which we refer to as the Euroclear Operator, under contract with Euroclear Clearance Systems S.C., a Belgian cooperative corporation, which we refer to as the Cooperative. All operations are conducted by the Euroclear Operator, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear Operator, not the Cooperative. The Cooperative establishes policy for Euroclear on behalf of Euroclear participants. Euroclear participants include banks (including central banks), securities brokers and dealers, and other professional financial intermediaries and may include various underwriters. Indirect access to Euroclear is also available to other firms that clear through or maintain a custodial relationship with a Euroclear participant, either directly or indirectly.
The Euroclear Operator is licensed by the Belgian Banking and Finance Commission to carry out banking activities on a global basis. As a Belgian bank, it is regulated and examined by the Belgian Banking and Finance Commission.
We have provided the descriptions of the operations and procedures of DTC, Clearstream and Euroclear in this prospectus solely as a matter of convenience. These operations and procedures are solely within the control of those organizations and are subject to change by them from time to time. Neither we nor the applicable trustee take any responsibility for these operations or procedures, and you are urged to contact DTC, Clearstream and Euroclear or their participants directly to discuss these matters.
We expect that under procedures established by DTC:
The laws of some jurisdictions may require that purchasers of securities take physical delivery of those securities in definitive form. Accordingly, the ability to transfer interests in the securities represented by a global security to those persons may be limited. In addition, because DTC can act only on behalf of its participants, who in turn act on behalf of persons who hold interests through participants, the ability of a person having an interest in securities represented by a global security to pledge or transfer those interests to persons or entities that do not participate in DTC's system, or
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otherwise to take actions in respect of such interest, may be affected by the lack of a physical definitive security in respect of such interest.
So long as DTC or its nominee is the registered owner of a global security, DTC or that nominee will be considered the sole owner or holder of the securities represented by that global security for all purposes under the indenture and under the securities. Except as provided below, owners of beneficial interests in a global security will not be entitled to have securities represented by that global security registered in their names, will not receive or be entitled to receive physical delivery of certificated securities and will not be considered the owners or holders thereof under the indenture or under the securities for any purpose, including with respect to the giving of any direction, instruction or approval to the trustee. Accordingly, each holder owning a beneficial interest in a global security must rely on the procedures of DTC and, if that holder is not a direct or indirect participant, on the procedures of the participant through which that holder owns its interest, to exercise any rights of a holder of securities under the indenture or a global security.
Neither we nor the applicable trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of securities by DTC, Clearstream or Euroclear, or for maintaining, supervising or reviewing any records of those organizations relating to the securities.
Payments on the securities represented by a global security will be made to DTC or its nominee, as the case may be, as the registered owner thereof. We expect that DTC or its nominee, upon receipt of any payment on the securities represented by any such global security, will credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in such global security as shown in the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests in a global security held through such participants will be governed by standing instructions and customary practice as is now the case with securities held for the accounts of customers registered in the names of nominees for such customers. The participants will be responsible for those payments.
Distributions on the securities held beneficially through Clearstream will be credited to cash accounts of its customers in accordance with its rules and procedures, to the extent received by the U.S. depositary for Clearstream.
Securities clearance accounts and cash accounts with the Euroclear Operator are governed by the Terms and Conditions Governing Use of Euroclear and the related Operating Procedures of the Euroclear System, and applicable Belgian law, which we refer to collectively as the Terms and Conditions. The Terms and Conditions govern transfers of securities and cash within Euroclear, withdrawals of securities and cash from Euroclear, and receipts of payments with respect to securities in Euroclear. All securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts. The Euroclear Operator acts under the Terms and Conditions only on behalf of Euroclear participants and has no record of or relationship with persons holding through Euroclear participants.
Distributions on the securities held beneficially through Euroclear will be credited to the cash accounts of its participants in accordance with the Terms and Conditions, to the extent received by the U.S. depositary for Euroclear.
Clearance and Settlement Procedures
Initial settlement for the securities will be made in immediately available funds. Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC rules and will be settled in immediately available funds. Secondary market trading between Clearstream customers or Euroclear participants will occur in the ordinary way in accordance with the applicable rules and
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operating procedures of Clearstream and Euroclear, as applicable, and will be settled using the procedures applicable to conventional eurobonds in immediately available funds.
Cross-market transfers between persons holding directly or indirectly through DTC, on the one hand, and directly or indirectly through Clearstream customers or Euroclear participants, on the other, will be effected through DTC in accordance with DTC rules on behalf of the relevant European international clearing system by the U.S. depositary; however, such cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in such system in accordance with its rules and procedures and within its established deadlines (European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to the U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving the securities in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Clearstream customers and Euroclear participants may not deliver instructions directly to their U.S. depositaries.
Because of time-zone differences, credits of the securities received in Clearstream or Euroclear as a result of a transaction with a DTC participant will be made during subsequent securities settlement processing and dated the business day following the DTC settlement date. Such credits or any transactions in the securities settled during such processing will be reported to the relevant Clearstream customers or Euroclear participants on such business day. Cash received in Clearstream or Euroclear as a result of sales of the securities by or through a Clearstream customer or a Euroclear participant to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Clearstream or Euroclear cash account only as of the business day following settlement in DTC.
Although DTC, Clearstream and Euroclear have agreed to the foregoing procedures to facilitate transfers of the securities among participants of DTC, Clearstream and Euroclear, they are under no obligation to perform or continue to perform such procedures and such procedures may be changed or discontinued at any time.
Certificated Securities
Unless otherwise indicated in the accompanying prospectus supplement, we will issue certificated securities to each person that DTC identifies as the beneficial owner of the securities represented by a global security upon surrender by DTC of such global security if:
Neither we nor the applicable trustee will be liable for any delay by DTC, its nominee or any direct or indirect participant in identifying the beneficial owners of the securities. We and the applicable trustee may conclusively rely on, and will be protected in relying on, instructions from DTC or its nominee for all purposes, including with respect to the registration and delivery, and the respective principal amounts, of the certificated securities to be issued.
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We may sell the securities offered by this prospectus:
The accompanying prospectus supplement will set forth the terms of the offering of the securities and the method of distribution and will identify any firms acting as underwriters, dealers or agents in connection with the offering, including:
Only those underwriters identified in the accompanying prospectus supplement are deemed to be underwriters in connection with the securities offered in such prospectus supplement.
The distribution of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at prices determined as the accompanying prospectus supplement specifies. In connection with the sale of the securities, underwriters, dealers or agents may be deemed to have received compensation from us in the form of underwriting discounts or commissions and also may receive commissions from purchasers for whom they may act as agent. Underwriters may sell the securities to or through dealers, and the dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers for whom they may act as agent. Some of the underwriters, dealers or agents who participate in the distribution of securities may engage in other transactions with, and perform other services for, us or our subsidiaries in the ordinary course of business.
We will provide in the accompanying prospectus supplement information regarding any underwriting discounts or other compensation that we pay to underwriters or agents in connection with the offering of securities. Underwriters, dealers and agents participating in the distribution of securities may be deemed to be underwriters, and any discounts and commissions they receive and any profit they realize on the resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act of 1933. Underwriters and their controlling persons, dealers and agents may be entitled, under agreements entered into with us, to indemnification against and contribution toward specific civil liabilities, including liabilities under the Securities Act of 1933.
The securities may or may not be listed on a national securities exchange. In connection with an offering, the underwriters may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in an offering. Stabilizing transactions consist of bids or purchases made for the purpose of preventing or retarding a decline in the market price of the securities while an offering is in progress. The underwriters also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the underwriters have
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repurchased securities sold by or for the account of that underwriter in stabilizing or short-covering transactions. These activities by the underwriters may stabilize, maintain or otherwise affect the market price of the securities. As a result, the price of the securities may be higher than the price that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by the underwriters at any time.
Various of the underwriters who participate in the distribution of securities, and their affiliates, may perform various commercial banking and investment banking services for us and our affiliates from time to time in the ordinary course of business.
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The validity of the securities offered by this prospectus will be passed upon for us by Pillsbury Winthrop Shaw Pittman LLP, New York, New York.
The consolidated financial statements and schedule of CA, Inc. and subsidiaries as of March 31, 2008 and 2007, and for each of the years in the three-year period ended March 31, 2008, and management's assessment of the effectiveness of internal control over financial reporting as of March 31, 2008, have been incorporated by reference herein and in the registration statement in reliance upon the reports of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
The audit report covering the March 31, 2008, consolidated financial statements and related consolidated financial statement schedule refers to a change during the fourth quarter of fiscal year 2008 in the Company's method of accounting for accounts receivable and unearned revenue on billed and uncollected amounts due from customers from a "net method of presentation" to a "gross method of presentation". The audit report covering the March 31, 2008, consolidated financial statements and related consolidated financial statement schedule also contains an explanatory paragraph that states that effective April 1, 2007, the Company adopted the provisions of Financial Accounting Standards Board (FASB) Interpretation No. 48, Accounting for Uncertainty in Income Taxes—an interpretation of FASB Statement No. 109 , which clarifies the accounting for uncertainty in income taxes recognized in an enterprise's financial statements.
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PART II
Information Not Required In Prospectus
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of estimated expenses in connection with the issuance and distribution of the securities being registered, other than underwriting discounts.
| SEC registration fee | (1) | ||
| Fees and expenses of independent accountants | (2) | ||
| Trustee fees and expenses | (2) | ||
| Legal fees and expenses | (2) | ||
| Printing and delivery expenses | (2) | ||
| Blue sky fees | (2) | ||
| Rating agency fees | (2) | ||
| Miscellaneous expenses | (2) | ||
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| Total | (1)(2) | ||
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Item 15. Indemnification of Directors and Officers.
We are a corporation organized under the laws of the State of Delaware. Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") 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 for any breach of the director's duty of loyalty to the corporation or its stockholders, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or for any transaction from which the director derived an improper personal benefit.
Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against amounts paid and expenses incurred in connection with an action or proceeding to which he is or is threatened to be made a party by reason of such position, if such person shall have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation, and, in any criminal proceeding, if such person had no reasonable cause to believe his conduct was unlawful; provided that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such indemnification is proper under the circumstances.
II-1
As permitted by Section 145 of the DGCL, Article EIGHTH of our Restated Certificate of Incorporation, as amended, provides:
The corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities or other matters referred to in or covered by said section, and the indemnification provided for herein, shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By Law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Our Restated Certificate of Incorporation, as amended, also limits the personal liability of directors for monetary damages in certain instances and eliminates director liability for monetary damages arising from any breach of a directors' duty of care.
We maintain insurance on behalf of any person who is or was a director, officer, employee or agent of our, or is or was serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in such capacity, or arising out of his status as such, whether or not we would have the power to indemnify him against such liability under the provisions of our Restated Certificate of Incorporation, as amended.
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Exhibit No.
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Description
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|---|---|---|
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1.1 |
* |
Form of Underwriting Agreement |
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3.1 |
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Registrant's Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.3 to the Registrant's Current Report on Form 8-K filed with the SEC on March 9, 2006) |
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3.2 |
|
Registrant's By-Laws (as amended, effective as of February 23, 2007) (incorporated by reference to Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed with the SEC on February 28, 2007) |
|
4.1 |
|
Indenture dated as of June 1, 2008 between the Registrant and U.S. Bank National Association, as trustee, relating to the senior debt securities, the senior subordinated debt securities and the junior subordinated debt securities, as applicable |
|
4.2 |
* |
Form of Officer's Certificate or Supplemental Indenture establishing the terms of the senior debt securities (including form of the senior debt securities) |
|
4.3 |
* |
Form of Officer's Certificate or Supplemental Indenture establishing the terms of the senior subordinated debt securities (including form of the senior subordinated debt securities) |
|
4.4 |
* |
Form of Officer's Certificate or Supplemental Indenture establishing the terms of the junior subordinated debt securities (including form of the junior subordinated debt securities) |
II-2
|
4.5 |
|
Stockholder Protection Rights Agreement, dated as of October 16, 2006, between the Registrant and Mellon Investor Services LLC, as Rights Agent (including Forms of Rights Certificate and of Election to Exercise as Exhibit A thereto and Form of Certificate of Designation and Terms of Participating Preferred Stock as Exhibit B thereto) (incorporated by reference to Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed with the SEC on October 16, 2006) |
|
4.6 |
* |
Form of Common Stock Certificate |
|
4.7 |
* |
Form of Certificate of Designation of Preferred Stock |
|
4.8 |
* |
Form of Preferred Stock Certificate |
|
4.9 |
* |
Form of Unit Agreement relating to Units |
|
4.10 |
* |
Form of Unit Certificate |
|
5.1 |
|
Opinion of Pillsbury Winthrop Shaw Pittman LLP |
|
12.1 |
|
Computation of ratios of earnings to fixed charges |
|
23.1 |
|
Consent of Pillsbury Winthrop Shaw Pittman LLP (included in Exhibit 5.1) |
|
23.2 |
|
Consent of KPMG LLP, Independent Registered Public Accounting Firm |
|
24.1 |
|
Power of Attorney (included on the signature page hereof) |
|
25.1 |
|
Form T-1 Statement of Eligibility of U.S. Bank National Association, as trustee for the senior debt securities and, as applicable, the senior subordinated debt securities and the junior subordinated debt securities under the Trust Indenture Act of 1939 |
|
25.2 |
** |
Form T-1 Statement of Eligibility of any other trustee for the senior subordinated debt securities or the junior subordinated debt securities under the Trust Indenture Act of 1939 |
II-3
set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and
provided, however , that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the Registration Statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement.
II-4
communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
II-5
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 Islandia, State of New York, on June 11, 2008.
| CA, INC. | |||
|
|
|
By: |
/s/ JOHN A. SWAINSON John A. Swainson, Chief Executive Officer (Principal Executive Officer) |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Nancy E. Cooper, Amy Fliegelman Olli and James Hodge, and each of them individually, with full power of substitution and resubstitution, his or her true and lawful attorneys in fact and agents, with full powers to each of them to sign for us, in our names and in the capacities indicated below, the Registration Statement on Form S-3 filed with the Securities and Exchange Commission, and any and all amendments to said Registration Statement, and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, in connection with the registration under the Securities Act of 1933, of securities of the Registrant, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
|
Signature
|
Title
|
Date
|
||
|---|---|---|---|---|
|
|
|
|
|
|
|
/s/
JOHN A. SWAINSON
John A. Swainson |
Chief Executive Officer
(Principal Executive Officer) |
June 11, 2008 | ||
|
/s/ NANCY E. COOPER Nancy E. Cooper |
|
Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
|
June 11, 2008 |
|
/s/ MARC F. STOLL Marc F. Stoll |
|
Corporate Senior Vice President and Corporate Controller (Principal Accounting Officer) |
|
June 11, 2008 |
|
/s/ RAYMOND J. BROMARK Raymond J. Bromark |
|
Director |
|
June 11, 2008 |
|
/s/ ALFONSE M. D'AMATO Alfonse M. D'Amato |
|
Director |
|
June 11, 2008 |
|
/s/ GARY J. FERNANDES Gary J. Fernandes |
|
Director |
|
June 11, 2008 |
|
/s/ ROBERT E. LA BLANC Robert E. La Blanc |
|
Director |
|
June 11, 2008 |
|
/s/ CHRISTOPHER B. LOFGREN Christopher B. Lofgren |
|
Director |
|
June 11, 2008 |
|
/s/ JAY W. LORSCH Jay W. Lorsch |
|
Director |
|
June 11, 2008 |
|
/s/ WILLIAM E. MCCRACKEN William E. McCracken |
|
(Non-Executive) Chairman of the Board of Directors |
|
June 11, 2008 |
|
/s/ WALTER P. SCHUETZE Walter P. Schuetze |
|
Director |
|
June 11, 2008 |
|
/s/ JOHN A. SWAINSON John A. Swainson |
|
Director |
|
June 11, 2008 |
|
/s/ LAURA S. UNGER Laura S. Unger |
|
Director |
|
June 11, 2008 |
|
/s/ ARTHUR F. WEINBACH Arthur F. Weinbach |
|
Director |
|
June 11, 2008 |
|
/s/ RENATO ZAMBONINI Renato Zambonini |
|
Director |
|
June 11, 2008 |
|
Exhibit No.
|
Description
|
|
|---|---|---|
| 1.1 | * | Form of Underwriting Agreement |
|
3.1 |
|
Registrant's Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.3 to the Registrant's Current Report on Form 8-K filed with the SEC on March 9, 2006) |
|
3.2 |
|
Registrant's By-Laws (as amended, effective as of February 23, 2007) (incorporated by reference to Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed with the SEC on February 28, 2007) |
|
4.1 |
|
Indenture dated as of June 1, 2008 between the Registrant and U.S. Bank National Association, as trustee, relating to the senior debt securities, the senior subordinated debt securities and the junior subordinated debt securities, as applicable |
|
4.2 |
* |
Form of Officer's Certificate or Supplemental Indenture establishing the terms of the senior debt securities (including form of the senior debt securities) |
|
4.3 |
* |
Form of Officer's Certificate or Supplemental Indenture establishing the terms of the senior subordinated debt securities (including form of the senior subordinated debt securities) |
|
4.4 |
* |
Form of Officer's Certificate or Supplemental Indenture establishing the terms of the junior subordinated debt securities (including form of the junior subordinated debt securities) |
|
4.5 |
|
Stockholder Protection Rights Agreement, dated as of October 16, 2006, between the Registrant and Mellon Investor Services LLC, as Rights Agent (including Forms of Rights Certificate and of Election to Exercise as Exhibit A thereto and Form of Certificate of Designation and Terms of Participating Preferred Stock as Exhibit B thereto) (incorporated by reference to Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed with the SEC on October 16, 2006) |
|
4.6 |
* |
Form of Common Stock Certificate |
|
4.7 |
* |
Form of Certificate of Designation of Preferred Stock |
|
4.8 |
* |
Form of Preferred Stock Certificate |
|
4.9 |
* |
Form of Unit Agreement relating to Units |
|
4.10 |
* |
Form of Unit Certificate |
|
5.1 |
|
Opinion of Pillsbury Winthrop Shaw Pittman LLP |
|
12.1 |
|
Computation of ratios of earnings to fixed charges |
|
23.1 |
|
Consent of Pillsbury Winthrop Shaw Pittman LLP (included in Exhibit 5.1) |
|
23.2 |
|
Consent of KPMG LLP, Independent Registered Public Accounting Firm |
|
24.1 |
|
Power of Attorney (included on the signature page hereof) |
|
25.1 |
|
Form T-1 Statement of Eligibility of U.S. Bank National Association, as trustee for the senior debt securities and, as applicable, the senior subordinated debt securities and the junior subordinated debt securities under the Trust Indenture Act of 1939 |
|
25.2 |
** |
Form T-1 Statement of Eligibility of any other trustee for the senior subordinated debt securities or the junior subordinated debt securities under the Trust Indenture Act of 1939 |
Exhibit 4.1
CA, Inc.
and
U.S. Bank National Association,
as Trustee
INDENTURE
Dated as of June 1, 2008
Table of Contents
|
|
|
|
Page |
|
|
|
|
|
|
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
|
1 |
|
|
Section 1.1 |
Definitions |
|
1 |
|
Section 1.2 |
Other Definitions |
|
7 |
|
Section 1.3 |
Incorporation by Reference of Trust Indenture Act |
|
7 |
|
Section 1.4 |
Rules of Construction |
|
7 |
|
|
|
|
|
|
ARTICLE II THE SECURITIES |
|
8 |
|
|
Section 2.1 |
Issuable in Series |
|
8 |
|
Section 2.2 |
Establishment of Terms of Securities of a Series |
|
8 |
|
Section 2.3 |
Execution and Authentication |
|
10 |
|
Section 2.4 |
Registrar and Paying Agent |
|
12 |
|
Section 2.5 |
Paying Agent to Hold Money in Trust |
|
12 |
|
Section 2.6 |
Holder Lists |
|
13 |
|
Section 2.7 |
Transfer and Exchange |
|
13 |
|
Section 2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
|
13 |
|
Section 2.9 |
Outstanding Securities |
|
14 |
|
Section 2.10 |
Treasury Securities |
|
15 |
|
Section 2.11 |
Temporary Securities |
|
15 |
|
Section 2.12 |
Cancellation |
|
15 |
|
Section 2.13 |
Defaulted Interest |
|
15 |
|
Section 2.14 |
Global Securities |
|
15 |
|
Section 2.15 |
CUSIP Numbers |
|
17 |
|
|
|
|
|
|
ARTICLE III REDEMPTION |
|
17 |
|
|
Section 3.1 |
Notice to Trustee |
|
17 |
|
Section 3.2 |
Selection of Securities to be Redeemed |
|
17 |
|
Section 3.3 |
Notice of Redemption |
|
17 |
|
Section 3.4 |
Effect of Notice of Redemption |
|
18 |
|
Section 3.5 |
Deposit of Redemption Price |
|
18 |
|
Section 3.6 |
Securities Redeemed in Part |
|
18 |
|
|
|
|
|
|
ARTICLE IV COVENANTS |
|
18 |
|
|
Section 4.1 |
Payment of Principal and Interest |
|
18 |
|
Section 4.2 |
Limitation on Liens |
|
19 |
|
Section 4.3 |
Limitation on Sale/Leaseback Transactions |
|
20 |
|
Section 4.4 |
Commission Reports |
|
21 |
|
Section 4.5 |
Compliance Certificate |
|
22 |
|
Section 4.6 |
Corporate Existence |
|
23 |
|
|
|
|
|
|
ARTICLE V SUCCESSORS |
|
23 |
|
|
Section 5.1 |
When Company May Merge, Etc. |
|
23 |
|
Section 5.2 |
Successor Person Substituted |
|
23 |
|
|
|
|
|
|
ARTICLE VI DEFAULTS AND REMEDIES |
|
24 |
|
|
Section 6.1 |
Events of Default |
|
24 |
i
|
Section 6.2 |
Acceleration of Maturity; Rescission and Annulment |
|
25 |
|
Section 6.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
|
26 |
|
Section 6.4 |
Trustee May File Proofs of Claim |
|
27 |
|
Section 6.5 |
Trustee May Enforce Claims Without Possession of Securities |
|
27 |
|
Section 6.6 |
Application of Money Collected |
|
27 |
|
Section 6.7 |
Limitation on Suits |
|
28 |
|
Section 6.8 |
Unconditional Right of Holders to Receive Principal and Interest |
|
28 |
|
Section 6.9 |
Restoration of Rights and Remedies |
|
29 |
|
Section 6.10 |
Rights and Remedies Cumulative |
|
29 |
|
Section 6.11 |
Delay or Omission Not Waiver |
|
29 |
|
Section 6.12 |
Control by Holders |
|
29 |
|
Section 6.13 |
Waiver of Past Defaults |
|
29 |
|
Section 6.14 |
Undertaking for Costs |
|
30 |
|
|
|
|
|
|
ARTICLE VII TRUSTEE |
|
30 |
|
|
Section 7.1 |
Duties of Trustee |
|
30 |
|
Section 7.2 |
Rights of Trustee |
|
32 |
|
Section 7.3 |
Individual Rights of Trustee |
|
33 |
|
Section 7.4 |
Trustee’s Disclaimer |
|
33 |
|
Section 7.5 |
Notice of Defaults |
|
33 |
|
Section 7.6 |
Reports by Trustee to Holders |
|
34 |
|
Section 7.7 |
Compensation and Indemnity |
|
34 |
|
Section 7.8 |
Replacement of Trustee |
|
35 |
|
Section 7.9 |
Successor Trustee by Merger, etc. |
|
35 |
|
Section 7.10 |
Eligibility; Disqualification |
|
36 |
|
Section 7.11 |
Preferential Collection of Claims Against Company |
|
36 |
|
|
|
|
|
|
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE |
|
36 |
|
|
Section 8.1 |
Option to Effect Legal Defeasance or Covenant Defeasance |
|
36 |
|
Section 8.2 |
Legal Defeasance and Discharge |
|
36 |
|
Section 8.3 |
Covenant Defeasance |
|
37 |
|
Section 8.4 |
Conditions to Legal or Covenant Defeasance |
|
37 |
|
Section 8.5 |
Satisfaction and Discharge of Indenture |
|
38 |
|
Section 8.6 |
Survival of Certain Obligations |
|
39 |
|
Section 8.7 |
Acknowledgment of Discharge by Trustee |
|
39 |
|
Section 8.8 |
Application of Trust Moneys |
|
39 |
|
Section 8.9 |
Repayment to the Company; Unclaimed Money |
|
39 |
|
Section 8.10 |
Reinstatement |
|
40 |
|
|
|
|
|
|
ARTICLE IX AMENDMENTS AND WAIVERS |
|
40 |
|
|
Section 9.1 |
Without Consent of Holders |
|
40 |
|
Section 9.2 |
With Consent of Holders |
|
41 |
|
Section 9.3 |
Limitations |
|
42 |
|
Section 9.4 |
Compliance with Trust Indenture Act |
|
42 |
|
Section 9.5 |
Revocation and Effect of Consents |
|
42 |
|
Section 9.6 |
Notation on or Exchange of Securities |
|
43 |
|
Section 9.7 |
Trustee Protected |
|
43 |
ii
|
ARTICLE X MISCELLANEOUS |
|
43 |
|
|
Section 10.1 |
Trust Indenture Act Controls |
|
43 |
|
Section 10.2 |
Notices |
|
43 |
|
Section 10.3 |
Communication by Holders with Other Holders |
|
44 |
|
Section 10.4 |
Certificate and Opinion as to Conditions Precedent |
|
44 |
|
Section 10.5 |
Statements Required in Certificate or Opinion |
|
44 |
|
Section 10.6 |
Rules by Trustee and Agents |
|
45 |
|
Section 10.7 |
Legal Holidays |
|
45 |
|
Section 10.8 |
No Recourse Against Others |
|
45 |
|
Section 10.9 |
Counterparts |
|
45 |
|
Section 10.10 |
Governing Laws |
|
45 |
|
Section 10.11 |
No Adverse Interpretation of Other Agreements |
|
45 |
|
Section 10.12 |
Successors |
|
45 |
|
Section 10.13 |
Severability |
|
46 |
|
Section 10.14 |
Table of Contents, Headings, Etc. |
|
46 |
|
Section 10.15 |
Securities in a Foreign Currency |
|
46 |
|
Section 10.16 |
Judgment Currency |
|
46 |
iii
CA, Inc.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of June 1, 2008
|
Section 310 |
(a)(1) |
|
7.10 |
|
|
(a)(2) |
|
7.10 |
|
|
(a)(3) |
|
Not Applicable |
|
|
(a)(4) |
|
Not Applicable |
|
|
(a)(5) |
|
7.10 |
|
|
(b) |
|
7.10 |
|
Section 311 |
(a) |
|
7.11 |
|
|
(b) |
|
7.11 |
|
|
(c) |
|
Not Applicable |
|
Section 312 |
(a) |
|
2.6 |
|
|
(b) |
|
10.3 |
|
|
(c) |
|
10.3 |
|
Section 313 |
(a) |
|
7.6 |
|
|
(b)(1) |
|
7.6 |
|
|
(b)(2) |
|
7.6 |
|
|
(c)(1) |
|
7.6 |
|
|
(d) |
|
7.6 |
|
Section 314 |
(a) |
|
4.4, 4.5, 10.5 |
|
|
(b) |
|
Not Applicable |
|
|
(c)(1) |
|
10.4 |
|
|
(c)(2) |
|
10.4 |
|
|
(c)(3) |
|
Not Applicable |
|
|
(d) |
|
Not Applicable |
|
|
(e) |
|
10.5 |
|
|
(f) |
|
Not Applicable |
|
Section 315 |
(a) |
|
7.1 |
|
|
(b) |
|
7.5 |
|
|
(c) |
|
7.1 |
|
|
(d) |
|
7.1 |
|
|
(e) |
|
6.14 |
|
Section 316 |
(a) |
|
2.10 |
|
|
(a)(1)(a) |
|
6.12 |
|
|
(a)(1)(b) |
|
6.13 |
|
|
(b) |
|
6.8 |
|
|
(c) |
|
Not Applicable |
|
Section 317 |
(a)(1) |
|
6.3 |
|
|
(a)(2) |
|
6.4 |
|
|
(b) |
|
2.5 |
|
Section 318 |
(a) |
|
10.1 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
iv
Indenture dated as of June 1, 2008 between CA, Inc., a corporation duly incorporated and existing under the laws of Delaware and having its principal executive office at One CA Plaza, Islandia, New York 11749 (the “ Company ”), and U.S. Bank National Association, as Trustee (the “ Trustee ”) .
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions .
“ Additional Amounts ” means any additional amounts that are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified herein or therein and that are owing to such Holders.
“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “ control ” (including, with correlative meanings, the terms “ controlled by ” and “ under common control with ”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities or by agreement or otherwise.
“ Agent ” means any Registrar, Paying Agent or Service Agent.
“ Attributable Debt ” means, when used in connection with a Sale/Leaseback Transaction involving a Principal Property, at the time of determination, the lesser of:
For purposes of the foregoing definition, rent shall not include amounts required to be paid by the lessee, whether or not designated as rent or additional rent, on account of or contingent upon maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease that is terminable by the lessee upon the payment of a penalty, such net amount
shall be the lesser of (i) the net amount determined assuming termination upon the first date such lease may be terminated (in which case the net amount shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the net amount determined assuming no such termination.
“ Authorized Newspaper ” means a newspaper in an official language of the country of publication customarily published at least once a day for at least five days in each calendar week and of general circulation in the place in connection with which the term is used. If it shall be impractical in the opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by the Trustee shall constitute a sufficient publication of such notice.
“ Bearer ” means anyone in possession from time to time of a Bearer Security.
“ Bearer Security ” means any Security, including any interest coupon appertaining thereto, that does not provide for the identification of the Holder thereof.
“ Board of Directors ” means the Board of Directors of the Company or any duly authorized committee thereof.
“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
“ Business Day ” means, unless otherwise provided by a Board Resolution, an Officers’ Certificate or a Supplemental Indenture for the Securities of a particular Series, a day that is not, in New York City, a Saturday, Sunday, a legal holiday or a day on which banking institutions are authorized or obligated by law to close .
“ Capital Stock ” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock and limited liability or partnership interests (whether general or limited), but excluding any debt securities convertible into such equity .
“ Commission ” means the Securities and Exchange Commission or any successor agency.
“ Company ” means the party named as such above until a successor replaces it and thereafter means such successor.
“ Company Order ” means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive officer, principal financial officer or principal accounting officer.
“ Company Request ” means a written request or order signed in the name of the Company, as the case may be, by (a) the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the President or a Vice President and by the Chief Financial Officer,
2
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, or (b) any two Persons designated in a Company Order previously delivered to the Trustee by any two of the foregoing officers .
“ Consolidated Net Assets ” means, as of any particular time, the aggregate amount of assets at the end of the Company’s most recently completed fiscal quarter after deducting therefrom all current liabilities except for (a) notes and loans payable, (b) current maturities of long-term debt and (c) current maturities of obligations under capital leases, all as set forth on the most recent consolidated balance sheet of the Company and its consolidated Subsidiaries and computed in accordance with GAAP.
“ Corporate Trust Office ” means the designated office of the Trustee at which at any particular time its corporate trust business shall be administered, which office of U.S. Bank National Association, at the date of the execution of this Indenture, is located at 100 Wall Street, Suite 1600, New York, New York 10005, Attention: Corporate Trust Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company) .
“ Default ” means any event that is, or after notice or passage of time or both would be, an Event of Default.
“ Depository ” means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such Person, “ Depository ” as used with respect to the Securities of any Series shall mean the Depository with respect to the Securities of such Series.
“ Discount Security ” means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2.
“ Dollars ” and “ $ ” means the currency of The United States of America.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Foreign Currency ” means any currency or currency unit issued by a government other than the government of The United States of America.
“ Foreign Government Obligations ” means, with respect to Securities of any Series that are denominated in a Foreign Currency, (a) 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 or (b) obligations of a Person controlled or supervised by or acting as an agency or instrumentality of such government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in the case of either clause (a) or (b), are not callable or redeemable at the option of the issuer thereof.
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“ GAAP ” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect as of the date of determination.
“ Global Security ” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of the Securities of a particular Series, issued to the Depository for such Series or its nominee, and registered in the name of such Depository or nominee.
“ Holder ” means a Person in whose name a Security is registered or the holder of a Bearer Security.
“ Indebtedness ” means, with respect to any Person, obligations (other than Nonrecourse Obligations) of such Person for borrowed money or evidenced by bonds, debentures, notes or similar instruments.
“ Indenture ” means this Indenture as amended or supplemented from time to time, subject to Section 10.1, and shall include the form and terms of the Securities of a particular Series established as contemplated hereunder.
“ interest ” with respect to any Discount Security that by its terms bears interest only after Maturity means interest payable after Maturity.
“ Maturity ” when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity, upon redemption or required repurchase , by declaration of acceleration or otherwise.
“ Nonrecourse Obligation ” means Indebtedness or other obligations substantially related to (a) the acquisition of assets not previously owned by the Company or any Restricted Subsidiary or (b) the financing of a project involving the development or expansion of properties of the Company or those of any Restricted Subsidiary, as to which the obligee with respect to such Indebtedness or obligation has no recourse to the Company or any Restricted Subsidiary or any assets of the Company or those of any Restricted Subsidiary other than the assets that were acquired with the proceeds of such transaction or the project financed with the proceeds of such transaction (and the proceeds thereof).
“ Officer ” means the Chief Executive Officer, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.
“ Officers’ Certificate ” means a certificate signed by two Officers, one of whom must be the Company’s principal executive officer, principal financial officer or principal accounting officer.
“ Opinion of Counsel ” means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
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“ Person ” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or political subdivision thereof .
“ principal ” of a Security means the principal of such Security plus, when applicable, the premium, if any, on, and any Additional Amounts in respect of, such Security.
“ Principal Property ” means the land, land improvements, buildings and fixtures (to the extent they constitute real property interests and including any leasehold interest therein) constituting the principal corporate office, any manufacturing plant or any manufacturing facility (whether now owned or hereafter acquired) that:
“ Responsible Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee having direct responsibility for the administration of this Indenture or any other officer to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject .
“ Restricted Subsidiary ” means any of the Company’s direct or indirect Subsidiaries that owns any Principal Property; provided, however , that the term “ Restricted Subsidiary ” does not include (a) any such Subsidiary that is principally engaged in leasing or in financing receivables or that is principally engaged in financing outside the United States of America the Company’s operations or those of its Subsidiaries or (b) any such Subsidiary less than 80% of the Voting Stock of which is owned, directly or indirectly, by the Company, by one or more of the Company’s other Subsidiaries or by the Company and one or more of the Company’s other Subsidiaries if the common stock of such Subsidiary is traded on any national securities exchange or in the over-the-counter market.
“ Securities ” means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“ Series ” or “ Securities of a Series ” means the debentures, notes or other debt instruments of the Company of a particular series created pursuant to Sections 2.1 and 2.2.
“ Stated Maturity ” means when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security as the fixed date on
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which the principal of such Security or such installment of principal or interest is due and payable.
“ Subsidiary ” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of such Person .
“ Supplemental Indenture ” means any instrument that supplements this Indenture as contemplated hereunder.
“ TIA ” means the Trust Indenture Act of 1939 as in effect on the date of this Indenture; provided, however , that in the event the Trust Indenture Act of 1939 is amended after such date, “ TIA ” means, to the extent required by any such amendment, the Trust Indenture Act as so amended.
“ Trustee ” means the Person named as the “ Trustee ” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “ Trustee ” as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of such Series.
“ U.S. Government Obligations ” means securities that are (a) direct obligations of The United States of America for the payment of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of The United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by The United States of America, and that are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depository receipt.
“ Voting Stock ” of a Person means all classes of any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock and limited liability or partnership interests (whether general or limited), but excluding any debt securities convertible into such equity, to the extent then outstanding and normally entitled to vote in the election of such Person’s directors, managers or trustees, as applicable.
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Section 1.2 Other Definitions .
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Term |
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Defined in
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“Bankruptcy Law” |
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6.1 |
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“Covenant Defeasance” |
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8.3 |
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“Custodian” |
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6.1 |
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“Event of Default” |
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6.1 |
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“Judgment Currency” |
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10.16 |
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“Legal Holiday” |
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10.7 |
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“Legal Defeasance” |
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8.2 |
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“Market Exchange Rate” |
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10.15 |
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“Mortgage” |
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4.2(a) |
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“New York Banking Day” |
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10.16 |
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“Paying Agent” |
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2.4 |
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“Registrar” |
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2.4 |
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“Required Currency” |
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10.16 |
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“Sale/Leaseback Transaction” |
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4.3 (a) |
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“Service Agent” |
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2.4 |
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“Subordinated Securities” |
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2.2(u) |
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Section 1.3 Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the TIA, such provision is incorporated by reference in and made a part of this Indenture. The following terms that are defined in the TIA and used in this Indenture have the following meanings: (a) “indenture securities” means the Securities; (b) “indenture security holder” means a Holder; (c) “indenture to be qualified” means this Indenture; (d) “indenture trustee” or “institutional trustee” means the Trustee; and (e) “obligor” on the indenture securities means the Company and any successor obligor upon the Securities. All other terms used in this Indenture that are defined in the TIA or a rule thereunder or by the TIA’s reference to another statute that are not otherwise defined herein are used herein as so defined.
Section 1.4 Rules of Construction . Unless the context otherwise requires:
ARTICLE II
THE SECURITIES
Section 2.1 Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution, an Officers’ Certificate or a Supplemental Indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, such Board Resolution, Officers’ Certificate or Supplemental Indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Securities of a particular Series shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2 Establishment of Terms of Securities of a Series. At or prior to the issuance of any Securities within a Series, the following shall be established (as to such Series generally, in the case of Section 2.2(a) and either as to the Securities within such Series or as to such Series generally in the case of Sections 2.2(b) through 2.2(w)) by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, an Officers’ Certificate or a Supplemental Indenture:
All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, Officers’ Certificate or Supplemental Indenture referred to above, and the authorized principal amount of any Series may not be increased to provide for issuances of additional Securities of such Series, unless otherwise provided in such Board Resolution, Officers’ Certificate or Supplemental Indenture.
Section 2.3 Execution and Authentication . Two Officers shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
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A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, Officers’ Certificate or Supplemental Indenture, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by a Board Resolution, an Officers’ Certificate or a Supplemental Indenture.
The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series established pursuant to Section 2.2(c), except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Sections 7.1 and 7.2) shall be fully protected in relying on: (a) the Board Resolution, Officers’ Certificate or Supplemental Indenture establishing the form of the Securities of such Series or of Securities within such Series and the terms of the Securities of such Series or of Securities within such Series; (b) an Officers’ Certificate complying with Section 10.4; and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series if (a) the Trustee, being advised by counsel, determines that such action may not be taken lawfully or (b) the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors or vice-presidents shall determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Securities of such Series.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
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Section 2.4 Registrar and Paying Agent . The Company shall maintain, with respect to the Securities of each Series, at the place or places established with respect to Securities of such Series pursuant to Section 2.2(f), an office or agency where Securities of such Series may be presented or surrendered for payment (“ Paying Agent ”), where Securities of such Series may be surrendered for registration of transfer or exchange (“ Registrar ”) and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served (“ Service Agent ”). The Registrar shall keep a register with respect to the Securities of each Series and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind such designations; provided, however , that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The term “ Registrar ” includes any co-registrar; the term “ Paying Agent ” includes any additional paying agent; and the term “ Service Agent ” includes any additional service agent.
The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is appointed prior to the time Securities of such Series are first issued.
Section 2.5 Paying Agent to Hold Money in Trust . The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Holders of the Securities of any Series, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Securities of such Series, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders of the Securities of any Series all money held by it as Paying Agent.
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Section 2.6 Holder Lists . The Trustee shall preserve, in as current a form as is reasonably practicable, the most recent list available to it of the names and addresses of Holders of the Securities of each Series and shall otherwise comply with Section 312(a) of the TIA. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of the Securities of each Series.
Section 2.7 Transfer and Exchange . Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company or the Trustee may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Section 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business fifteen days immediately preceding the mailing of a notice of redemption of Securities of such Series selected for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part.
Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities . If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser (within the meaning of the Uniform Commercial Code as in effect in the jurisdiction in which the Company is organized) , the Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section 2.8, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section 2.8 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of such Series duly issued hereunder.
The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9 Outstanding Securities . The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it pursuant to Section 2.12, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section 2.9 as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a protected purchaser.
If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date the Securities of such Series cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
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Section 2.10 Treasury Securities . In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11 Temporary Securities . Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12 Cancellation . The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation in accordance with its customary procedures and, if requested in writing by the Company, deliver such canceled Securities to the Company or as it otherwise directs; provided, however , that the Trustee shall not be required to destroy Securities. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13 Defaulted Interest . If the Company defaults in a payment of interest on the Securities of any Series, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Holders of the Securities of such Series on a subsequent special record date. The Company shall fix the record date and payment date. At least ten days before the record date, the Company shall mail to the Trustee and to each Holder of such Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14 Global Securities .
“This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository or a nominee of the Depository. This Security is exchangeable for Securities registered in the name of a Person other than the Depository or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee of the Depository, by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.”
Section 2.15 CUSIP Numbers . The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided, however , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change in “CUSIP” numbers of which the Company becomes aware.
ARTICLE III
REDEMPTION
Section 3.1 Notice to Trustee . The Company may, with respect to the Securities of any Series, reserve the right to redeem and pay the Securities of such Series or may covenant to redeem and pay the Securities of such Series or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in the Securities of such Series. If the Securities of any Series are redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Securities of such Series pursuant to the terms of the Securities of such Series, it shall notify the Trustee of the date of such redemption and the principal amount of the Securities of such Series to be redeemed. The Company shall give the notice at least 45 days before the date of such redemption (or such shorter notice as may be acceptable to the Trustee).
Section 3.2 Selection of Securities to be Redeemed . Unless otherwise indicated for the Securities of a particular Series by a Board Resolution, an Officers’ Certificate or a Supplemental Indenture, if less than all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of such Series to be redeemed in any manner that the Trustee deems fair and appropriate. The Trustee shall make the selection from Securities of such Series outstanding not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of such Series that have denominations larger than $1,000. Securities of such Series and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, if the Securities of such Series are issuable in other denominations pursuant to Section 2.2(j), the minimum principal denomination for the Securities of such Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of such Series called for redemption.
Section 3.3 Notice of Redemption . Unless otherwise indicated for a particular Series by Board Resolution, an Officers’ Certificate or a Supplemental Indenture, at least 30 days but not more than 60 days before any date of redemption of the Securities of any Series, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed and if any Bearer Securities are outstanding, publish on one occasion a notice in an Authorized Newspaper.
The notice shall identify the Securities of such Series to be redeemed and shall state:
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Subject to Section 3.1, at the Company’s written request, the Trustee shall give the notice of redemption in the Company’s name and at its expense.
Section 3.4 Effect of Notice of Redemption . Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the date of such redemption and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the date of such redemption; provided, however , that installments of interest whose Stated Maturity is on or prior to the date of such redemption shall be payable to the Holders of such Securities (or one or more predecessor Securities) registered at the close of business on the relevant record date therefor according to their terms and the terms of this Indenture.
Section 3.5 Deposit of Redemption Price . On or before 10:00 a.m., New York City time, on the date of such redemption, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6 Securities Redeemed in Part . Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
Section 4.1 Payment of Principal and Interest . The Company covenants and agrees for the benefit of the Holders of the Securities of each Series that it will duly and punctually pay the principal of and interest, if any, on the Securities of such Series in accordance with the terms of the Securities of such Series and this Indenture.
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Section 4.2 Limitation on Liens .
The Company shall , so long as any of the Securities are outstanding (other than Subordinated Securities) :
Section 4.5 Compliance Certificate. The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officers’ Certificate stating whether or not to the knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions hereof (without regard to any period of grace or requirement of notice provided hereunder), and if a Default or Event of Default shall have occurred, specifying all such Defaults or Events of Default and the nature and status thereof of which they may have knowledge.
The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, within 30 days after becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
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Section 4.6 Corporate Existence . Except as otherwise permitted by Article V, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
ARTICLE V
SUCCESSORS
Section 5.1 When Company May Merge, Etc. The Company shall not consolidate with, or sell, lease, convey or otherwise transfer all or substantially all of the Company’s assets to, or merge with or into, any other Person or entity, unless:
Section 5.2 Successor Person Substituted . Upon any consolidation of the Company with, or merger by the Company into, any other Person or sale, conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 5.1, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease of all or substantially all of the Company’s assets, the predecessor Person shall not be relieved from its obligation to pay the principal of and interest on the Securities.
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ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default . The term “ Event of Default ,” wherever used herein with respect to the Securities of any Series, means any one of the following events, unless in the Board Resolution, Officers’ Certificate or Supplemental Indenture establishing the Securities of such Series, it is provided that the Securities of such Series shall not have the benefit of such Event of Default:
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
The term “ Bankruptcy Law ” means Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors. The term “ Custodian ” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.2 Acceleration of Maturity; Rescission and Annulment . If an Event of Default with respect to Securities of any Series outstanding at the time such Even of Default occurs and is continuing (other than an Event of Default referred to in Section 6.1(e) or 6.1(f)), then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the outstanding Securities of such Series may declare the entire principal amount (or, if any Securities of such Series are Discount Securities, such portion of the principal amount as may be specified in the terms of the Securities of such Series) of and accrued but unpaid interest, if any, on all of the Securities of such Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued but unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.1(e) or 6.1(f) shall occur, the principal amount (or specified amount) of and accrued but unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to the Securities of any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article VI, the Holders of a majority in principal amount of the outstanding Securities of such Series, by written notice to the Company and the Trustee, may rescind and annul such declaration with respect to the Securities of such Series and its consequences if:
Section 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee . The Company covenants that if:
then the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific
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enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4 Trustee May File Proofs of Claim . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.5 Trustee May Enforce Claims Without Possession of Securities . All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 6.6 Application of Money Collected . Any money collected by the Trustee pursuant to this Article VI shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest,
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upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
Section 6.7 Limitation on Suits . No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
it being understood and intended that no one or more of such Holders shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 6.8 Unconditional Right of Holders to Receive Principal and Interest . Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the date of such redemption) and to institute suit for the
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enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 6.9 Restoration of Rights and Remedies . If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10 Rights and Remedies Cumulative . Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver . No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Control by Holders . The Holders of a majority in principal amount of the outstanding Securities of any Series shall 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 Securities of such Series, provided that:
Section 6.13 Waiver of Past Defaults . Subject to Section 6.2, the Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to
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such Series and its consequences, except a default (i) in the payment of the principal of or interest on any Security of such Series ( provided, however , that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind and annul a declaration of acceleration and its consequences, including any default in such payment that has become due solely by such declaration of acceleration) or (ii) in respect of a covenant or provision hereof that cannot be modified or amended without the consent of the Holder of each outstanding Security of such Series affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14 Undertaking for Costs . All parties to this Indenture agree, and each Holder of any Security by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.14 shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the date of such redemption).
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee .
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Section 7.2 Rights of Trustee .
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Section 7.3 Individual Rights of Trustee . The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4 Trustee’s Disclaimer . The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication.
Section 7.5 Notice of Defaults . If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and a Responsible Officer of the Trustee has notice thereof, the Trustee shall mail to each Holder of the Securities of such Series and, if any Bearer Securities are outstanding, publish on one occasion in an Authorized Newspaper, notice of such Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has notice of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders of such Series.
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Section 7.6 Reports by Trustee to Holders . Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all Holders, as their names and addresses appear on the register kept by the Registrar, and, if any Bearer Securities are outstanding, publish in an Authorized Newspaper, a brief report dated as of such May 15, in accordance with, and to the extent required under, Section 313 of the TIA.
A copy of each report at the time of its mailing to Holders of any Series shall be filed with the Commission and each stock exchange on which the Securities of such Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.
Section 7.7 Compensation and Indemnity . The Company shall pay to the Trustee from time to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor Trustee (including the cost of defending itself) against any loss, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through negligence or bad faith.
To secure the Company’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of such Series.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(e) or 6.1(f) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section 7.7 shall survive the resignation or removal of the Trustee and the termination or satisfaction of this Indenture.
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Section 7.8 Replacement of Trustee . A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.8.
The Trustee may resign with respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to such Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to the Securities of each Series for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Holder of each such Series and, if any Bearer Securities are outstanding, publish such notice on one occasion in an Authorized Newspaper. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to such replacement.
Section 7.9 Successor Trustee by Merger, etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
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Section 7.10 Eligibility; Disqualification . This Indenture shall always have a Trustee who satisfies the requirements of Section 310(a)(1), 310(a)(2) and 310(a)(5) of the TIA. The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with Section 310(b) of the TIA.
Section 7.11 Preferential Collection of Claims Against Company . The Trustee is subject to Section 311(a) of the TIA, excluding any creditor relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the TIA to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance . The Company may, at its option evidenced by a Board Resolution or an Officers’ Certificate, at any time, with respect to the Securities of any Series, elect to have either Section 8.2 or 8.3 be applied to all of the outstanding Securities of such Series upon compliance with the conditions set forth below in this Article VIII.
Section 8.2 Legal Defeasance and Discharge . Upon the Company’s exercise under Section 8.1 of the option applicable to this Section 8.2, the Company shall be deemed to have been discharged from its obligations with respect to all of the outstanding Securities of the particular Series on the date the conditions set forth below in Section 8.4 are satisfied (“ Legal Defeasance ”). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged all the obligations relating to, and to have satisfied all of its obligations under, the outstanding Securities of such Series and this Indenture and cured all then existing Events of Default (and the Trustee, on written demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except that the following shall survive until otherwise terminated or discharged hereunder (and the Securities of such Series shall thereafter be deemed to be “outstanding” only for the purposes of the Sections of this Indenture referred to below in this Section 8.2):
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Subject to compliance with this Article VIII, the Company may exercise its option under this Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 with respect to the Securities of any Series. Following such Legal Defeasance, payment of the Securities of such Series may not be accelerated because of an Event of Default.
Section 8.3 Covenant Defeasance . Upon the Company’s exercise under Section 8.1 of the option applicable to this Section 8.3, the Company shall be released from any obligations under the covenants contained in Sections 4.2, 4.3, 4.4, 4.5 and 5.1 with respect to the outstanding Securities of a particular Series, along with any additional covenants contained in such Security or any Supplemental Indenture in connection therewith, on and after the date the conditions set forth below in Section 8.4 are satisfied (“ Covenant Defeasance ”), and the Securities of such Series shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Securities of such Series appertaining thereto, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document but, except as specified above, the remainder of this Indenture and the Securities of such Series shall be unaffected thereby. Following such Covenant Defeasance, payment of the Securities of such Series may not be accelerated because of an Event of Default pursuant to Section 6.1(c) (except for a default with respect to Section 5.1), 6.1(d) or 6.1(g).
Section 8.4 Conditions to Legal or Covenant Defeasance . As set forth below, the following shall be the conditions to the application of either Section 8.2 or 8.3 to the outstanding Securities of any Series:
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Section 8.5 Satisfaction and Discharge of Indenture . This Indenture will, upon Company Request, be discharged and will cease to be of further effect as to all of the Securities of a particular Series issued hereunder when either: (a) all of the Securities of such Series theretofore authenticated and delivered (except (i) lost, stolen or destroyed Securities that have been replaced or paid as provided in Section 2.8 and (ii) the Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company or discharged from such trust, as provided in the last paragraph of Section 8.9) have been delivered to the Trustee for cancellation; or (b) (i) all of the Securities of such Series not theretofore delivered to the Trustee for cancellation are due and payable by their terms within one year or have become due and payable by reason of the making of a notice of redemption and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of cash in any combination of currency or currency unit in which the Securities of such Series are payable,
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U.S. Government Obligations, or a combination thereof in such amounts as will be sufficient to pay and discharge the entire indebtedness on the Securities of such Series not theretofore delivered to the Trustee for cancellation for principal and accrued but unpaid interest, if any, to Maturity or the date of such redemption, as the case may be, (ii) the Company has paid, or caused to be paid, all sums payable by it under this Indenture and (iii) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Securities of such Series at the Stated Maturity or the date of such redemption, as the case may be. In addition, in the case of clause (a) or (b) above, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Section 8.6 Survival of Certain Obligations . Notwithstanding the satisfaction and discharge of this Indenture and of the Securities of any Series referred to in Section 8.1, 8.2, 8.4, or 8.5, the respective obligations of the Company and the Trustee under Sections 2.3, 2.6, 2.7, 2.8, 2.12, 6.8, 8.7, 8.8, 8.9 and 8.10 and Article VII shall survive with respect to the Securities of such Series until the Securities of such Series are no longer outstanding, and thereafter the obligations of the Company and the Trustee under Sections 8.7, 8.8, 8.9 and 8.10 shall survive. Nothing contained in this Article VIII shall abrogate any of the obligations or duties of the Trustee under this Indenture.
Section 8.7 Acknowledgment of Discharge by Trustee . Subject to Section 8.10, after (a) the conditions of Section 8.4 or 8.5 have been satisfied with respect to the Securities of any Series, (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company and (c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in clause (a) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee upon written request shall acknowledge in writing the discharge of all of the Company’s obligations under this Indenture except for those surviving obligations specified in this Article VIII.
Section 8.8 Application of Trust Moneys . All money and U.S. Government Obligations deposited with the Trustee pursuant to Section 8.4 or 8.5 in respect of the Securities of such Series shall be held in trust and applied by it, in accordance with the provisions of the Securities of such Series and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Securities of such Series of all sums due and to become due thereon for principal and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 8.4 or 8.5 with respect to the Securities of such Series or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the Holders of the outstanding Securities of such Series.
Section 8.9 Repayment to the Company; Unclaimed Money . The Trustee and any Paying Agent for the Securities of any Series shall promptly pay or return to the Company upon Company Order any cash or U.S. Government Obligations held by them at any time that are not
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required for the payment of the principal of and interest, if any, on the Securities of such Series for which cash or U.S. Government Obligations have been deposited pursuant to Section 8.4 or 8.5.
Any money deposited with the Trustee or any Paying Agent for the Securities of any Series, or then held by the Company, in trust for the payment of the principal of and interest, if any, on the Security of any Series and remaining unclaimed for two years after such principal and interest, if any, has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be paid to the Company on Company Request or (if then held by the Company) shall be discharged from such trusts; and the Holder of any such Security shall, thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment may give written notice to the Holder of such Security, that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such written notice, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be repaid to the Company, as the case may be.
Section 8.10 Reinstatement . If the Trustee or Paying Agent for the Securities of any Series is unable to apply any cash or U.S. Government Obligations, as applicable, in accordance with Section 8.2, 8.3, 8.4 or 8.5 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2, 8.3, 8.4 or 8.5 until such time as the Trustee or Paying Agent for the Securities of such Series is permitted to apply all such cash or U.S. Government Obligations in accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however , that if the Company has made any payment of principal and interest, if any, on any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the cash or U.S. Government Obligations, as applicable, held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1 Without Consent of Holders . The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Holder:
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Section 9.2 With Consent of Holders . The Company and the Trustee may enter into a Supplemental Indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such Supplemental Indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any Supplemental Indenture or of modifying in any manner the rights of the Holders of the Securities of such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities of such Series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed Supplemental Indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a Supplemental Indenture or waiver under this Section 9.2 becomes effective, the Company shall mail to the Holders of Securities affected thereby and, if any Bearer Securities affected thereby are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly describing such Supplemental Indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect
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therein, shall not, however, in any way impair or affect the validity of any such Supplemental Indenture or waiver.
Section 9.3 Limitations . Without the consent of each Holder affected, an amendment or waiver may not:
Section 9.4 Compliance with Trust Indenture Act . Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a Supplemental Indenture that complies with the TIA as then in effect.
Section 9.5 Revocation and Effect of Consents . Until an amendment is set forth in a Supplemental Indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to such Holder’s Security or portion of a Security if the Trustee receives the notice of revocation before the date of such Supplemental Indenture or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Holder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through (g) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
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Section 9.6 Notation on or Exchange of Securities . The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of such Series may issue and the Trustee shall authenticate upon request new Securities of such Series that reflect the amendment or waiver.
Section 9.7 Trustee Protected . In executing, or accepting the additional trusts created by, any Supplemental Indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, in addition to the documents required by Section 10.4, and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such Supplemental Indenture is authorized or permitted by this Indenture. The Trustee shall sign all Supplemental Indentures, except that the Trustee need not sign any Supplemental Indenture that adversely affects its rights.
ARTICLE X
MISCELLANEOUS
Section 10.1 Trust Indenture Act Controls . If any provision of this Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
Section 10.2 Notices . Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in Person or mailed by first-class mail:
CA, Inc.
One CA Plaza
Islandia, New York 11749-7000
Attention: Treasurer
Telephone: (800) 225-5224
Facsimile: (631) 342-5117
with a copy to:
CA, Inc.
One CA Plaza
Islandia, New York 11749-7000
Attention: General Counsel
Telephone: (800) 225-5224
Facsimile: (631) 342-4866
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(b) if to the Trustee:
U.S. Bank National Association
100 Wall Street
Suite 1600
New York, New York 10005
Attention: Corporate Trust Services
Telephone: (212) 361-6173
Facsimile: (212) 361-6153
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Holder shall be mailed by first-class mail to such Holder’s address as shown on the register kept by the Registrar and, if any Bearer Securities are outstanding, published in an Authorized Newspaper. Failure to mail a notice or communication to a Holder of any Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Holder receives it.
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3 Communication by Holders with Other Holders . Holders of any Series may communicate pursuant to Section 312(b) of the TIA with other Holders of such Series or any other Series with respect to their rights under this Indenture or the Securities of such Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the TIA.
Section 10.4 Certificate and Opinion as to Conditions Precedent . Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
Section 10.5 Statements Required in Certificate or Opinion . Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 314(a)(4) of the TIA) shall comply with the provisions of Section 314(e) of the TIA and shall include:
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Section 10.6 Rules by Trustee and Agents . The Trustee may make reasonable rules for action by or a meeting of Holders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.7 Legal Holidays . Unless otherwise provided by Board Resolution, Officers’ Certificate or Supplemental Indenture for a particular Series, a “ Legal Holiday ” is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8 No Recourse Against Others . A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9 Counterparts . This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Section 10.10 Governing Laws . THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 10.11 No Adverse Interpretation of Other Agreements . This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors . All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
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Section 10.13 Severability . In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14 Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.15 Securities in a Foreign Currency . Unless otherwise specified in a Board Resolution, an Officers’ Certificate or a Supplemental Indenture delivered pursuant to Section 2.2 with respect to the Securities of a particular Series, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time outstanding and, at such time, there are outstanding Securities of any Series that are denominated in a coin or currency other than Dollars, then the principal amount of Securities of such Series that shall be deemed to be outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section 10.15, “ Market Exchange Rate ” shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such currency, the Company shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in The City of New York or in the country of issue of the currency in question or such other quotations as the Company shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Company regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably binding upon all Holders.
Section 10.16 Judgment Currency . The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the “ Required Currency ”) into a currency in which a judgment will be rendered (the “ Judgment Currency ”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant
46
to any judgment (whether or not entered in accordance with clause (a) above), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “ New York Banking Day ” means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required by law, regulation or executive order to close.
47
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written.
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CA, Inc. |
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By: |
/s/ James Hodge |
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Name: James Hodge |
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Title: Treasurer |
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U.S. Bank National Association , as Trustee |
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By |
/s/ Jean Clarke |
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Name: |
Jean Clarke |
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Title: |
Assistant Vice President |
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48
June 12, 2008
CA, Inc.
One CA Plaza
Islandia, New York 11749-7000
Ladies and Gentlemen:
We are acting as counsel for CA, Inc., a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-3 (the "Registration Statement") filed by the Company with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933 (the "Act"), including the prospectus included therein (the "Prospectus") relating to the registration thereunder of an indeterminate initial offering amount of the Company's (a) senior debt securities (the "Senior Debt Securities"), (b) senior subordinated debt securities (the "Senior Subordinated Debt Securities"), (c) junior subordinated debt securities (the "Junior Subordinated Debt Securities" and, together with the Senior Subordinated Debt Securities, the "Subordinated Debt Securities" and, together with the Senior Debt Securities, the "Debt Securities"), (d) preferred stock, class A, without par value (the "Preferred Stock"), and (e) common stock, par value $.10 per share (the "Common Stock" and, together with the Debt Securities and the Preferred Stock, the "Securities").
The Debt Securities will be issued pursuant to an Indenture in substantially the form of Exhibit 4.1 to the Registration Statement between U.S. Bank National Association, as trustee (the "Trustee"), and the Company, together with an Officer's Certificate or a Supplemental Indenture in the form to be filed or incorporated by reference as Exhibit 4.2, 4.3 or 4.4, as applicable, to the Registration Statement (such Indenture, as so modified or supplemented, the "Indenture").
We have reviewed the Registration Statement and such other agreements, documents, records, certificates and other materials, and have reviewed and are familiar with such corporate proceedings and satisfied ourselves as to such other matters, as we have considered relevant or necessary as a basis for this opinion. In such review, we have assumed the accuracy and completeness of all agreements, documents, records, certificates and other materials submitted to us, the conformity with the originals of all such materials submitted to us as copies (whether or not certified and including facsimiles), the authenticity of the originals of such materials and all materials submitted to us as originals, the genuineness of all signatures and the legal capacity of all natural persons.
Based upon the foregoing, we are of the opinion that:
1
designations conforming to the Delaware General Corporation Law with respect to such series with the Secretary of State of the State of Delaware, and when such shares have been issued and sold by the Company in the manner contemplated by the Registration Statement and the Prospectus and the prospectus supplement applicable thereto and in accordance with such action of the Board, such shares (including any shares of a series of the Preferred Stock duly issued upon conversion or exchange of any other Security in accordance with the terms of such Security or the instrument governing such Security providing for such conversion or exchange as approved by the Board) will be validly issued, fully paid and nonassessable.
The opinions set forth in paragraph 1 above are subject to and limited by the effect of (a) applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and other similar laws affecting creditors' rights generally, (b) general equitable principles (whether considered in a proceeding in equity or at law) and (c) requirements of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any proceeding therefor may be brought.
We have assumed that (a) at or prior to the time of the delivery of any of the Securities, the Registration Statement, including any amendments thereto, will be effective under the Securities Act and a supplement to the Prospectus applicable to the offer and sale of such Securities will have been prepared and filed with the Commission pursuant to Rule 424(b) under the Securities Act, (b) at or prior to the time of the issuance of any of the Securities, the Board shall not have rescinded or otherwise modified its authorization of such Securities, (c) in the case of the issuance of shares of the Common Stock or the Preferred Stock, the Company will have a sufficient number of authorized but unissued shares therefor under its Restated Certificate of Incorporation at the time of such issuance and (d) in the case of the issuance of any of the Debt Securities, neither the establishment of any terms of such Debt Securities after the date hereof nor the issuance and delivery of, or the performance of the Company's obligations under, such Debt Securities will require any authorization, consent, approval or license of, or any exemption from, or any registration or filing with, or any report or notice to, any executive, legislative, judicial, administrative or regulatory body (a "Governmental Approval") or violate or conflict with, result in a breach of, or constitute a default under, (i) any agreement or instrument to which the Company or any of its affiliates is a party or by which the Company or any of its affiliates or any of their respective properties may be bound, (ii) any Governmental Approval that may be applicable to the Company or any of its affiliates or any of their respective properties or (iii) any order, decision, judgment or decree that may be applicable to the Company or any of its affiliates or any of their respective properties.
This opinion is limited to the law of the State of New York and the Delaware General Corporation Law, in each case as in effect on the date hereof.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption "Validity of Securities" in the Registration Statement and the Prospectus and any supplement thereto. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Pillsbury Winthrop Shaw Pittman LLP
2
Exhibit 12.1
CA, Inc.
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(in millions, except ratios)
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Years Ended March 31 |
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2004 |
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2005 |
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2006 |
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2007 |
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2008 |
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Earnings available for fixed charges: |
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Earnings from continuing operations before income taxes, minority interest and discontinued operations |
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-114 |
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34 |
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125 |
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160 |
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808 |
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Add: Fixed charges |
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205 |
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221 |
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165 |
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199 |
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215 |
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Less: Minority Interest in pre-tax loss of subsidiaries that have not incurred fixed charges |
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0 |
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0 |
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1 |
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0 |
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0 |
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Total earnings available for fixed charges |
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91 |
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255 |
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291 |
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359 |
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1,023 |
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Fixed charges: |
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Interest expense(1) |
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136 |
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153 |
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95 |
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123 |
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136 |
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Interest portion of rental expense |
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69 |
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68 |
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70 |
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76 |
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79 |
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Total fixed charges |
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205 |
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221 |
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165 |
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199 |
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215 |
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RATIOS OF EARNINGS TO FIXED CHARGES |
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0.44 |
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1.15 |
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1.77 |
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1.81 |
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4.75 |
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Deficiency of earnings to fixed charges |
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114 |
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n/a |
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n/a |
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n/a |
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n/a |
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(1) Includes amortization of discount related to indebtedness
Consent of Independent Registered Public Accounting Firm
The
Board of Directors
CA, Inc.:
We consent to the use of our reports with respect to the consolidated financial statements and the related financial statement schedule, and the effectiveness of internal control over financial reporting incorporated by reference herein and to the reference to our firm under the heading "Experts" in the prospectus.
Our audit report covering the March 31, 2008, consolidated financial statements and the related consolidated financial statement schedule refers to a change during the fourth quarter of fiscal year 2008 in the Company's method of accounting for accounts receivable and unearned revenue on billed and uncollected amounts due from customers from a "net method of presentation" to a "gross method of presentation".
Our audit report covering the March 31, 2008, consolidated financial statements and the related consolidated financial statement schedule also contains an explanatory paragraph that states that effective April 1, 2007, the Company adopted the provisions of Financial Accounting Standards Board (FASB) Interpretation No. 48, Accounting for Uncertainty in Income Taxes—an interpretation of FASB Statement No. 109 , which clarifies the accounting for uncertainty in income taxes recognized in an enterprise's financial statements.
/s/ KPMG LLP
New York, New York
June 12, 2008
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT
OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)
o
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
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800 Nicollet Mall |
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Minneapolis, Minnesota |
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55402 |
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(Address of principal executive offices) |
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(Zip Code) |
Jean Clarke
U.S. Bank National Association
100 Wall Street, 16th floor
New York, NY 10005
(212) 361-6173
(Name, address and telephone number of agent for service)
CA, Inc.
(Issuer with respect to the Securities)
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Delaware |
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13-2857434 |
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(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
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One CA Plaza |
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Islandia, New York |
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11749-7000 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
Debt Securities
(Title of the Indenture Securities)
FORM T-1
Item 1. GENERAL INFORMATION . Furnish the following information as to the Trustee.
a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of the Currency
Washington, D.C.
b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.
None
Items 3-15 Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.
Item 16. LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.
1. A copy of the Articles of Association of the Trustee.*
2. A copy of the certificate of authority of the Trustee to commence business.*
3. A copy of the certificate of authority of the Trustee to exercise corporate trust powers.*
4. A copy of the existing bylaws of the Trustee.**
5. A copy of each Indenture referred to in Item 4. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.
7. Report of Condition of the Trustee as of March 31, 2008 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.
* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.
** Incorporated by reference to Exhibit 25.1 to registration statement on S-4, Registration Number 333-145601 filed on August 21, 2007.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the The City of New York, and State of New York, on the 11 th day of June 2008.
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By: |
/s/ Jean Clarke |
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Jean Clarke |
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Assistant Vice President |
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
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Dated: June 11, 2008 |
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By: |
/s/ Jean Clarke |
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Jean Clarke |
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Assistant Vice President |
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 3/31/2008
($000’s)
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3/31/2008 |
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Assets |
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Cash and Balances Due From Depository Institutions |
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$ |
7,494,457 |
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Securities |
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38,286,822 |
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Federal Funds |
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5,371,110 |
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Loans & Lease Financing Receivables |
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156,885,223 |
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Fixed Assets |
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3,251,220 |
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Intangible Assets |
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11,809,562 |
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Other Assets |
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14,170,921 |
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Total Assets |
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$ |
237,269,315 |
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Liabilities |
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Deposits |
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$ |
143,100,823 |
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Fed Funds |
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13,224,737 |
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Treasury Demand Notes |
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0 |
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Trading Liabilities |
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982,166 |
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Other Borrowed Money |
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41,879,455 |
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Acceptances |
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0 |
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Subordinated Notes and Debentures |
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7,647,466 |
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Other Liabilities |
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7,818,123 |
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Total Liabilities |
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$ |
214,652,770 |
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Equity |
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Minority Interest in Subsidiaries |
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$ |
1,530,190 |
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Common and Preferred Stock |
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18,200 |
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Surplus |
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12,057,586 |
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Undivided Profits |
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9,010,569 |
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Total Equity Capital |
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$ |
22,616,545 |
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Total Liabilities and Equity Capital |
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$ |
237,269,315 |
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To the best of the undersigned’s determination, as of the date hereof, the above financial information is true and correct.
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U.S. Bank National Association |
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By: |
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/s/ Jean Clarke |
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Assistant Vice President |
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Date: June 11, 2008 |
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