<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 17, 1998
REGISTRATION NO. 333-___
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INTUIT INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 77-0034661
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
--------------------
2535 GARCIA AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(650) 944-6000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
--------------------
CATHERINE L. VALENTINE
VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
2535 GARCIA AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(650) 944-6000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Copies to:
GORDON K. DAVIDSON, ESQ.
KENNETH A. LINHARES, ESQ.
DAVID K. MICHAELS, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
(650) 494-0600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO
TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED OFFERING PRICE (1)(2) REGISTRATION FEE
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<S> <C> <C>
Common Stock, $0.01 par value..... -- --
- -----------------------------------------------------------------------------------------------------
Preferred Stock, $0.01 par value... -- --
- -----------------------------------------------------------------------------------------------------
Debt Securities.................... -- --
- -----------------------------------------------------------------------------------------------------
Total $300,000,000 $88,500
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</TABLE>
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(1) Or (i) if any Debt Securities are issued at an original issue
discount, such greater principal amount as shall result in an aggregate initial
offering price equal to the amount to be registered or (ii) if any Debt
Securities are issued with a principal amount denominated in a foreign currency
or composite currency, such principal amount as shall result in an aggregate
initial offering price equivalent thereto in United States dollars at the time
of initial offering.
(2) These figures are estimates made solely for the purpose of
calculating the registration fee pursuant to Rule 457(c). Exclusive of accrued
interest, if any, on the Debt Securities.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
Pursuant to Rule 429 promulgated under the Securities Act of 1933, as
amended, the Prospectus which constitutes part of this Registration Statement
also relates to an aggregate of $200,000,000 of the Registrant's Common Stock,
Preferred Stock and Debt Securities previously registered on Form S-3,
Registration No. 33-99646.
<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO THE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
STATE.
SUBJECT TO COMPLETION, DATED APRIL 17, 1998
PROSPECTUS
$500,000,000
INTUIT INC.
COMMON STOCK, PREFERRED STOCK AND DEBT SECURITIES
-------------
Intuit Inc., a Delaware corporation ("Intuit" or the "Company") may from
time to time offer up to $500,000,000 in the aggregate of (a) shares of common
stock, $0.01 par value per share, of Intuit ("Common Stock"), (b) shares of
preferred stock, $0.01 par value per share, of Intuit ("Preferred Stock"), in
one or more series, and (c) debt securities of Intuit ("Debt Securities"),
consisting of debentures, notes and/or other secured or unsecured evidences of
indebtedness in one or more series, or (d) any combination of the foregoing,
either individually or as units consisting of one or more of the foregoing, each
at prices and on terms to be determined at the time of sale. The Common Stock,
Preferred Stock and Debt Securities are collectively referred to herein as the
"Securities." The Securities offered pursuant to this Prospectus may be issued
in one or more series of issuances and the aggregate offering price of the
Securities will not exceed $500,000,000 (or its equivalent (based on the
applicable exchange rate at the time of the sale) in one or more foreign
currencies, currency units or composite currencies as shall be designated by the
Company).
Intuit may sell the Securities to or through underwriters, dealers or
agents or directly to purchasers or through a combination of such methods. See
"Plan of Distribution." Intuit reserves the sole right to accept and, together
with its agents from time to time, to reject in whole or in part any proposed
purchase of Securities to be made directly or through agents. The accompanying
Prospectus Supplement ("Prospectus Supplement") sets forth the names of any
underwriters, dealers or agents involved in the sale of the Securities in
respect of which this Prospectus is being delivered, and any applicable fee,
commission or discount arrangement.
All specific terms of the offering and sale of Securities, including the
initial public offering price, aggregate amount, listing on any securities
exchange or quotation system, specific risk factors and the identity of the
agents, dealers, or underwriters, if any, to be utilized in connection with the
sale of the Securities, as well as information, as applicable, about certain
United States federal income tax considerations relating to the Securities being
sold, will be set forth in a Prospectus Supplement.
With respect to the Preferred Stock, the related Prospectus Supplement
will set forth the specific designation, rights, preferences, privileges and
restrictions thereof, including without limitation dividend rate or rates (or
method of ascertaining the same), dividend payment dates and dates from which
dividends shall accrue, voting rights, liquidation preferences, any conversion
or exchange rights, any redemption or sinking fund provisions and any other
special terms.
With respect to the Debt Securities, the related Prospectus Supplement
will set forth the title, rights and restrictions thereof, including without
limitation whether they are senior or subordinated, secured or unsecured
obligations, the currencies or currency units in which they are denominated, the
aggregate principal amount, the maturity, premium, if any, interest rate (which
may be fixed, floating or adjustable) and time and method of calculating payment
of interest, if any, the place or places where principal of (and premium, if
any) and interest, if any, on such Debt Securities will be payable, any
conversion, exchange, redemption or sinking fund provisions and any other
special terms. If so specified in the applicable Prospectus Supplement, Debt
Securities or a series may be issued in whole or in part in the form of one or
more temporary or permanent global securities.
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities, when issued, will be unsecured and will rank equally with all other
unsecured and unsubordinated indebtedness of the Company. The Subordinated Debt
Securities, when issued, will be subordinated in right of payment to all Senior
Indebtedness (as defined) of the Company, including any outstanding Senior Debt
Securities. See "Description of Debt Securities - Subordination of Subordinated
Debt Securities".
With respect to the Common Stock, the related Prospectus Supplement will
set forth the number of shares offered for sale by the Company and the initial
public offering price or method of determining the initial public offering
price. The Company's Common
<PAGE> 4
Stock is listed on the Nasdaq National Market under the symbol "INTU". Any
Common Stock sold pursuant to a Prospectus Supplement will be quoted on such
market.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
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THE OFFERING OF THE SECURITIES INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" COMMENCING ON PAGE 3 HEREOF.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS ___________, 1998.
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NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED
HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY SINCE SUCH DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities of the Commission located at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's regional offices at Seven World Trade Center, 13th Floor, New
York, New York 10048; and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can also be
obtained from the Public Reference Section of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Commission maintains a World Wide Web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission. The address of the World Wide Web
site is http://www.sec.gov. The Company's Common Stock is quoted for trading on
the Nasdaq National Market and, accordingly, reports, proxy statements and other
information concerning the Company may be inspected at the offices of the Nasdaq
Stock Market at 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Securities offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement and the exhibits
and schedules thereto. For further information with respect to the Company,
reference is made to the Registration Statement and the exhibits and schedules
filed therewith. Statements contained in this Prospectus as to the contents of
any contract or any other document referred to are not necessarily complete, and
in each instance reference is made to the copy of such contract or other
document filed as an exhibit to the Registration Statement, each such statement
being qualified in all respects by such reference. A copy of the Registration
Statement may be inspected, without charge, at the offices of the Commission in
Washington, D.C. and copies of all or any part of the Registration Statement may
be obtained from the Public Reference Section of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, upon the
payment of the fees prescribed by the Commission.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Company's annual report on Form 10-K filed with the Commission
for the fiscal year ended July 31, 1998.
(b) The Company's quarterly reports on Form 10-Q for the quarters ended
October 31, 1997 and January 31, 1998.
(c) The Company's definitive proxy statement dated December 12, 1997.
(d) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A filed with the Commission under the
Exchange Act, and any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act following the date of this Prospectus and prior to
the termination of the offering contemplated hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents (all of such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents").
The information relating to the Company contained in this Prospectus does not
purport to be comprehensive and should be read together with the information
contained in the Incorporated Documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement or this Prospectus to the extent that
a statement contained herein, in a Prospectus Supplement or in any other
document subsequently filed with the Commission which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the Incorporated Documents (not
including exhibits to the information that is incorporated by reference unless
such exhibits are specifically incorporated by reference into the information
that this Prospectus incorporates). Requests should be directed to Investor
Relations, Intuit Inc., 2535 Garcia Avenue, Mountain View, California 94043
(telephone number (650) 944-2713).
THE COMPANY
Intuit develops, markets and supports personal finance, small business
accounting, tax preparation and other consumer software products, and related
electronic services and supplies that enable individuals, professionals and
small businesses to automate commonly performed financial tasks and better
organize, understand, manage and plan their financial lives. Intuit commenced
operations in March 1983 and was incorporated in California in March 1984. In
March 1993, the Company was reincorporated in Delaware. The Company's principal
executive offices are located at 2535 Garcia Avenue, Mountain View, California
94043. Its telephone number is (650) 944-6000. Unless otherwise indicated
herein, the "Company" and "Intuit" refer to Intuit Inc., and its direct and
indirect subsidiaries.
RISK FACTORS
Prior to making an investment decision with respect to the Securities
offered hereby, prospective investors should carefully consider the specific
factors set forth under the caption "Risk Factors" in the applicable Prospectus
Supplement pertaining thereto, together with all of the other information
appearing herein or therein or incorporated by reference herein, in light of
their particular investment objectives and financial circumstances.
3
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USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the
net proceeds from the sale of Securities offered hereby will be used for general
corporate purposes. The Company expects from time to time to evaluate the
acquisition of products, businesses and technologies for which a portion of the
net proceeds may be used. Currently, however, the Company does not have any
understandings, commitments or agreements with respect to any material
acquisitions for which a portion of the net proceeds may be used.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the Company and its consolidated subsidiaries for the periods indicated. The
ratio of earnings to fixed charges has been computed by dividing earnings, which
consist of income before income taxes plus fixed charges by fixed charges which
consist of interest expense incurred plus the portion of the Company's rental
expense deemed to be interest.
<TABLE>
<CAPTION>
Ten
Year Months Years Ended
Ended Ended July 31, Six Months Ended
Sept. 30, July 31, ----------------------------------- January 31,
1993 1994 1995 1996 1997 1998
- --------- --------- -------- -------- ------- ----------------
<S> <C> <C> <C> <C> <C>
56.17 (1) (2) 2.58 8.00 69.96
</TABLE>
- --------------
(1) Earnings were inadequate to cover fixed charges by $181,117.
(2) Earnings were inadequate to cover fixed charges by $18,376.
GENERAL DESCRIPTION OF SECURITIES
Intuit may offer under this Prospectus shares of Common Stock, shares of
Preferred Stock, Debt Securities or any combination of the foregoing, either
individually or as units consisting of one or more Securities. The aggregate
offering price of Securities offered by Intuit under this Prospectus will not
exceed $500,000,000. If Securities are offered as units, the terms of the units
will be set forth in a Prospectus Supplement. Certain of the Securities to be
offered hereby involve a high degree of risk. Such risks will be set forth in
the Prospectus Supplement relating to such Security.
DESCRIPTION OF THE COMMON STOCK
Under Intuit's Certificate of Incorporation, Intuit is currently
authorized to issue up to 250,000,000 shares of Common Stock. As of March 31,
1998, there were 48,285,913 shares of Common Stock outstanding held by
approximately 842 stock holders of record.
Subject to preferences that may be applicable to any Preferred Stock
outstanding at the time, the holders of outstanding shares of Common Stock are
entitled to receive dividends out of assets legally available therefor at such
times and in such amounts as the Board of Directors may from time to time
determine. Each stockholder is entitled to one vote for each share of Common
Stock held by him or her on all matters submitted to a vote of stockholders.
Cumulative voting for the election of directors is not provided for in the
Company's Certificate of Incorporation, which means that the holders of a
majority of the shares voted can elect all of the directors then standing for
election. The Common Stock is not entitled to preemptive rights and is not
subject to conversion or redemption. Upon liquidation, dissolution or winding-up
of the Company, the assets legally available for distribution to stockholders
are distributable ratably among the holders of the Common Stock and any
participating Preferred Stock outstanding at that time after payment of
liquidation preferences, if any, on any outstanding Preferred Stock and payment
of other claims of creditors. Each outstanding share of Common Stock is, and any
shares of Common Stock offered hereby will be, fully paid and nonassessable.
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law (the "Anti-Takeover Law") regulating corporate
takeovers. The Anti-Takeover Law prevents certain Delaware corporations,
including those whose securities are listed on the Nasdaq National Market, from
engaging, under certain circumstances, in a "business combination" (which
includes a merger or sale of more than 10% of the corporation's assets) with any
"interested stockholder" (a stockholder who acquired 15% or more of the
corporation's outstanding voting stock without the prior approval of the
corporation's board of directors) for three years following the date that such
stockholder became an "interested stockholder."
4
<PAGE> 8
A Delaware corporation may "opt out" of the Anti-Takeover Law with an express
provision in its original certificate of incorporation or an express provision
in its certificate of incorporation or bylaws resulting from a stockholders'
amendment approved by at least a majority of the outstanding voting shares. The
Company has not "opted out" of the provisions of the Anti-Takeover Law.
The Transfer Agent and Registrar for the Company's Common Stock is
American Stock Transfer & Trust Company. The Company's Common Stock is listed on
the Nasdaq National Market under the trading symbol INTU.
DESCRIPTION OF THE PREFERRED STOCK
Under the Company's Certificate of Incorporation, the Company's Board of
Directors may direct the issuance of up to 3,000,000 shares of Preferred Stock
in one or more series and with rights, preferences, privileges and restrictions,
including dividend rights, voting rights, conversion rights, terms of redemption
and liquidation preferences, that may be fixed or designated by the Board of
Directors pursuant to a certificate of designation without any further vote or
action by Intuit's stockholders. The issuance of Preferred Stock may have the
effect of delaying, deferring or preventing a change in control of Intuit.
Preferred Stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. The specific terms of a
particular series of Preferred Stock will be described in the Prospectus
Supplement relating to that series. The description of Preferred Stock set forth
below and the description of the terms of a particular series of Preferred Stock
set forth in the related Prospectus Supplement do not purport to be complete and
are qualified in their entirety by reference to the certificate of designation
relating to that series. The related Prospectus Supplement will contain a
description of certain United States Federal income tax consequences relating to
the purchase and ownership of the series of Preferred Stock described in such
Prospectus Supplement.
The rights, preferences, privileges and restrictions of the Preferred
Stock of each series will be fixed by the certificate of designation relating to
such series. A Prospectus Supplement, relating to each series, will specify the
terms of the Preferred Stock as follows:
(a) The maximum number of shares to constitute the series and the
distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of the series, whether
such rate is fixed or variable or both, the date or dates from which dividends
will begin to accrue or accumulate and whether dividends will be cumulative;
(c) The price at and the terms and conditions on which the shares of the
series may be redeemed, if at all, including the time during which shares of the
series may be redeemed and any accumulated dividends thereon or premiums that
the holders of shares of the series shall be entitled to receive upon the
redemption thereof;
(d) The liquidation preference, if any, and any accumulated dividends
thereon, that the holders of shares of the series shall be entitled to receive
upon the liquidation, dissolution or winding up of the affairs of the Company;
(e) Whether or not the shares of the series will be subject to operation
of a retirement or sinking fund, and, if so, the extent and manner in which any
such fund shall be applied to the purchase or redemption of the shares of the
series for retirement or for other corporate purposes, and the terms and
provisions relating to the operation of such fund;
(f) The terms and conditions, if any, on which the shares of the series
shall be convertible into, or exchangeable for, shares of any other class or
classes of capital stock of the Company or any series of any other class or
classes, or of any other series of the same class, including the price or prices
or the rate or rates of conversion or exchange and the method, if any, of
adjusting the same;
(g) The voting rights, if any, of the shares of the series; and
(h) Any or all other preferences and relative, participating,
operational or other special rights, privileges or qualifications, limitations
or restrictions thereof.
5
<PAGE> 9
DESCRIPTION OF THE DEBT SECURITIES
The Senior Debt Securities are to be issued under an Indenture (the
"Senior Indenture"), between the Company, as issuer, and the Trustee thereunder,
as Trustee (the "Trustee"). The Subordinated Debt Securities are to be issued
under a separate Indenture (the "Subordinated Indenture"), also between the
Company, as issuer, and the Trustee thereunder, as Trustee. The Senior Indenture
and Subordinated Indenture are sometimes referred to collectively as the
"Indentures". A copy of the form of each Indenture is filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The Debt Securities
may be issued from time to time in one or more series. The particular terms of
each series, or of Debt Securities forming a part of a series, which are offered
by a Prospectus Supplement will be described in such Prospectus Supplement.
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject, and are qualified in their entirety by
reference, to all the provisions of the Indentures, including the definitions
therein of certain terms, and, with respect to any particular Debt Securities,
to the description of the terms thereof included in the Prospectus Supplement
relating thereto. Wherever particular Sections or defined terms of the
Indentures are referred to herein or in a Prospectus Supplement, such Sections
or defined terms are incorporated by reference herein or therein, as the case
may be. Section and Article references used herein are references to the
Indentures.
GENERAL
The Indentures will provide that the Debt Securities may be issued in
separate series thereunder from time to time without limitation as to aggregate
principal amount. The Company may specify a maximum aggregate principal amount
for the Debt Securities of any series. (Section 301) The Debt Securities are to
have such terms and provisions which are not inconsistent with the Indentures,
including as to maturity, principal and interest, as the Company may determine.
Unless otherwise specified in the applicable Prospectus Supplement, the Senior
Debt Securities when issued will be unsecured and unsubordinated obligations of
the Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company. The Subordinated Debt Securities
when issued will be subordinated in right of payment to the prior payment in
full of all Senior Indebtedness of the Company, including any outstanding Senior
Debt Securities, as described under "Subordination of Subordinated Debt
Securities" and in the applicable Prospectus Supplement.
The Indentures do not limit the amount of other debt that may be issued
by the Company and do not contain financial or similar restrictive covenants.
The Indentures do not contain any provision intended to provide protection to
holders of Debt Securities against a sudden or dramatic decline in credit
quality of the Company that could, for example, result from a takeover,
recapitalization, special dividend or other restructuring.
The applicable Prospectus Supplement will set forth whether the Debt
Securities offered shall be Senior Debt Securities or Subordinated Debt
Securities and the price or prices at which the Debt Securities to be offered
will be issued and will describe the following terms of such Debt Securities:
(1) the title of such Debt Securities; (2) any limit on the aggregate principal
amount of such Debt Securities or the series of which they are a part; (3) the
Person to whom any interest on a Debt Security of the series shall be payable,
if other than the Person in whose name that Debt Security (or one or more
predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest; (4) the date or dates on which the
principal of any of such Debt Securities will be payable; (5) the rate or rates
at which any of such Debt Securities will bear interest, if any, the date or
dates from which any such interest will accrue, the Interest Payment Dates on
which any such interest will be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date; (6) the place or places where the
principal of and any premium and interest on any of such Debt Securities will be
payable; (7) the period or periods within which, the price or prices at which,
and the terms and conditions on which any of such Debt Securities may be
redeemed, in whole or in part, at the option of the Company; (8) the obligation,
if any, of the Company to redeem or purchase any of such Debt Securities
pursuant to any sinking fund or analogous provision or at the option of the
Holder thereof, and the period or periods within which, the price or prices at
which, and the terms and conditions on which any of such Debt Securities will be
redeemed or purchased, in whole or in part, pursuant to any such obligation; (9)
the denominations in which any of such Debt Securities will be issuable, if
other than denominations of $1,000 and any integral multiple thereof; (10) if
the amount of principal of or any premium or interest on any of such Debt
Securities may be determined with reference to an index or pursuant to a
formula, the manner in which such amounts will be determined; (11) if other than
the currency of the United States of America, the currency, currencies or
currency units in which the principal of or any premium or interest on any of
such Debt Securities will be payable (and the manner in which the equivalent of
the principal amount thereof in the currency of the United States of America is
to be determined for any purpose, including for the purpose of determining the
principal amount deemed to be Outstanding at any time); (12) if the principal of
or any premium or
6
<PAGE> 10
interest on any of such Debt Securities is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency units other
than those in which such Debt Securities are stated to be payable, the currency,
currencies or currency units in which payment of any such amount as to which
such election is made will be payable, the periods within which and the terms
and conditions upon which such election is to be made and the amount so payable
(or the manner in which such amount is to be determined); (13) if other than the
entire principal amount thereof, the portion of the principal amount of any of
such Debt Securities which will be payable upon declaration of acceleration of
the Maturity thereof; (14) if the principal amount payable at the Stated
Maturity of any of such Debt Securities will not be determinable as of any one
or more dates prior to the Stated Maturity, the amount which will be deemed to
be such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any Maturity other
than the Stated Maturity or which will be deemed to be Outstanding as of any
such date (or, in any such case, the manner in which such deemed principal
amount is to be determined); (15) if applicable, that such Debt Securities, in
whole or any specified part, are defeasible pursuant to the provisions of the
Indentures described under "Defeasance and Covenant Defeasance-Defeasance and
Discharge" or "Defeasance and Covenant Defeasance-Defeasance of Certain
Covenants," or under both such captions; (16) if applicable, the terms of any
right to convert Debt Securities into, or exchange Debt Securities for, shares
of Common Stock of the Company or other securities or property; (17) whether any
of such Debt Securities will be issuable in whole or in part in the form of one
or more Global Securities and, if so, the respective Depositaries for such
Global Securities, the form of any legend or legends to be borne by any such
Global Security in addition to or in lieu of the legends referred to under
"Form, Exchange and Transfer" or "Global Securities" and, if different from
those described under such captions, any circumstances under which any such
Global Security may be exchanged in whole or in part for Securities registered,
and any transfer of such Global Security in whole or in part may be registered,
in the names of Persons other than the Depositary for such Global Security or
its nominee; (18) whether the subordination provisions summarized below or
different subordination provisions, including a different definition of "Senior
Indebtedness" or "Designated Senior Indebtedness," will apply to any such Debt
Securities that are Subordinated Debt Securities; (19) any addition to or change
in the Events of Default applicable to any of such Debt Securities and any
change in the right of the Trustee or the Holders to declare the principal
amount of any of such Debt Securities due and payable; (20) any addition to or
change in the covenants in the Indentures applicable to any of such Debt
Securities; and (21) any other terms of such Debt Securities not inconsistent
with the provisions of the relevant Indenture. (Section 301)
Debt Securities, including Original Issue Discount Securities, may be
sold at a substantial discount below their stated principal amount. Certain
special United States federal income tax considerations (if any) applicable to
Debt Securities sold at an original issue discount will be described in the
applicable Prospectus Supplement. "Original Issue Discount Security" means any
Debt Security that provides for an amount less than the principal amount thereof
to be due and payable upon the declaration of acceleration of the maturity
thereof in accordance with the terms of the applicable indenture. The applicable
Prospectus Supplement relating to any series of Debt Securities that are
Original Issue Discount Securities will describe the particular provisions
relating to acceleration of the maturity of a portion of the principal amount of
such series of Original Issue Discount Securities upon the occurrence of an
Event of Default (as defined below) and the continuation thereof. In addition,
certain special United States federal income tax or other considerations (if
any) applicable to any Debt Securities which are denominated in a currency or
currency unit other than United States dollars will be described in the
applicable Prospectus Supplement.
CONVERSION AND EXCHANGE RIGHTS
The terms on which Debt Securities of any series are convertible into or
exchangeable for Common Stock or other securities or property will be set forth
in the Prospectus Supplement relating thereto. Such terms shall include
provisions as to whether conversion or exchange is mandatory or at the option of
the Holder and may include provisions pursuant to which the number of shares of
Common Stock or other securities or property to be received by the Holders of
Debt Securities upon conversion or exchange would be calculated according to the
market price of Common Stock or other securities or property as of a time stated
in the applicable Prospectus Supplement. (Article Fourteen)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The indebtedness evidenced by the Subordinated Debt Securities will, the
extent provided in the Subordinated Indenture, be subordinate in right of
payment to the prior payment in full of all Senior Indebtedness (as defined),
including any outstanding Senior Debt Securities. In the event of any insolvency
or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization, debt restructuring or
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other similar case or proceeding in connection therewith, relative to the
Company or to its creditors, as such, or to its assets, or any liquidation,
dissolution or other winding up of the Company, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or any assignment for the
benefit of creditors or any other marshaling of assets and liabilities of the
Company, the holders of Senior Indebtedness will be entitled to receive payment
in full of all amounts due or to become due on or in respect of all Senior
Indebtedness in cash before the Holders of the Subordinated Debt Securities are
entitled to receive any payment on account of principal of or any premium or
interest on the Subordinated Debt Securities or on account of the purchase,
redemption or other acquisition of Subordinated Debt Securities or before the
Company may make any sinking fund or defeasance payment to the Trustee or any
Paying Agent in accordance with the Subordinated Indenture. Notwithstanding the
foregoing, any amounts previously deposited by the Company with the Trustee or
Paying Agent in accordance with the subordination provisions of Article Fifteen
of the Subordinated Indenture at the time of such deposit may be paid to the
Holders of Subordinated Debt Securities ("Defeased Payments") (Section 1502)
In the event that any Subordinated Debt Securities are declared due and
payable before their Stated Maturity as a result of an Event of Default, the
holders of the Senior Indebtedness outstanding at the time such Subordinated
Debt Securities so become due and payable will be entitled to receive payment in
full of all amounts due or to become due on or in respect of all Senior
Indebtedness in cash before the Holders of the Subordinated Debt Securities are
entitled to receive any payment by the Company on account of the principal of or
any premium or interest on the Subordinated Debt Securities or on account of the
purchase, redemption or other acquisition of Subordinated Debt Securities or
before the Company may make any sinking fund or defeasance payment to the
Trustee or any Paying Agent in accordance with the Subordinated Indenture (other
than Defeased Payments). If the payment of Subordinated Debt Securities is
accelerated because of an Event of Default, the Company is required under the
Subordinated Indenture to promptly notify holders of Senior Indebtedness of the
acceleration. (Section 1503)
The Company also may not make any payment upon or in respect of the
Subordinated Debt Securities if (i) a default in the payment of the principal
of, premium, if any, interest, rent or other obligations (including a default
under any repurchase or redemption obligation) in respect of Designated Senior
Indebtedness occurs and is continuing beyond any applicable period of grace or
(ii) any other default occurs and is continuing with respect to Designated
Senior Indebtedness (as defined) that permits holders of the Designated Senior
Indebtedness as to which such default relates to accelerate its maturity and the
Trustee receives a notice of such default (a "Payment Blockage Notice") from the
Company, a holder of such Designated Senior Indebtedness or other person
permitted to give such notice under the Subordinated Indenture. The Company may
and shall resume payments on the Subordinated Debt Securities (a) in the case of
a payment default, upon the date on which such default is cured or waived or
ceases to exist and (b) in the case of a nonpayment default, the earlier of the
date on which such nonpayment default is cured or waived or ceases to exist or
179 days after the date on which the applicable Payment Blockage Notice is
received. No new period of payment blockage may be commenced pursuant to a
Payment Blockage Notice unless and until 365 days have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice. No nonpayment
default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee (unless such default was waived, cured or
otherwise ceased to exist and thereafter subsequently reoccurred) shall be, or
be made, the basis for a subsequent Payment Blockage Notice. (Section 1504)
By reason of the subordination provisions described above, in the event
of the Company's bankruptcy, dissolution or reorganization, holders of Senior
Indebtedness may receive more, ratably, and Holders of the Subordinated Debt
Securities may receive less, ratably, than the other creditors of the Company.
Such subordination will not prevent the occurrence of any Event of Default under
the Subordinated Indenture.
The term "Senior Indebtedness" means the principal of, premium, if any,
interest (including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) and rent payable on or
in connection with, and all fees, costs, expenses and other amounts accrued or
due on or in connection with, Indebtedness (as defined) of the Company, whether
outstanding on the date of the Subordinated Indenture or thereafter created,
incurred, assumed, guaranteed or in effect guaranteed by the Company (including
all deferrals, renewals, extensions or refundings of, or amendments,
modifications or supplements to, the foregoing), unless in the case of any
particular Indebtedness the instrument creating or evidencing the same or the
assumption or guarantee thereof expressly provides that such Indebtedness shall
not be senior in right of payment to the Subordinated Debt Securities or
expressly provides that such Indebtedness is "pari passu" or "junior" to the
Subordinated Debt Securities. Notwithstanding the foregoing, the term Senior
Indebtedness shall not include (a) any Indebtedness of the Company to any
subsidiary of the Company, a majority of the voting stock of which is owned,
directly or indirectly, by the Company and (b) any Indebtedness that is not
secured.
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The term "Indebtedness" means, with respect to any Person (as defined in
the Subordinated Indenture), and without duplication, (a) all indebtedness,
obligations and other liabilities (contingent or otherwise) of such Person for
borrowed money (including obligations of the Company in respect of overdrafts,
foreign exchange contracts, currency exchange agreements, interest rate
protection agreements, and any loans or advances from banks, whether or not
evidenced by notes or similar instruments) or evidenced by credit or loan
agreements, bonds, debentures, notes or similar instruments (whether or not the
recourse of the lender is to the whole of the assets of such Person or to only a
portion thereof) (other than any trade accounts payable or other accrued current
liability incurred in the ordinary course of business in connection with the
obtaining of materials or services), (b) all reimbursement obligations and other
liabilities (contingent or otherwise) of such Person with respect to letters of
credit, bank guarantees or bankers' acceptances, (c) all obligations and
liabilities (contingent or otherwise) (i) in respect of leases of such Person
required, in conformity with generally accepted accounting principles, to be
accounted for as capitalized lease obligations on the balance sheet of such
Person, (ii) as lessee under other leases for real property (and related assets
leased together therewith), whether or not capitalized, entered into or leased
after the date of the Subordinated Indenture for financing purposes (as
determined by the Company) or (iii) under any lease or related document
(including a purchase agreement) in connection with the lease of real property
which provides that such Person is contractually obligated to purchase or cause
a third party to purchase the leased property and thereby guarantee a minimum
residual value of leased property to the lessor and the obligations of such
Person under such lease or related document to purchase or to cause a third
party to purchase such leased property, (d) all obligations of such Person
(contingent or otherwise) with respect to an interest rate, currency or other
swap, cap a floor or collar agreement, hedge agreement, forward contract, or
other similar instrument or agreement or foreign currency hedge, exchange,
purchase or similar instrument or agreement, (e) all direct or indirect
guaranties, agreements, to be jointly liable or similar agreements by such
Person in respect of, and obligations or liabilities (contingent or otherwise)
of such Person to purchase or otherwise acquire or otherwise assure a creditor
against loss in respect of, indebtedness, obligations or liabilities of another
Person of the kind described in clauses (a) through (d), (f) any indebtedness or
other obligations described in clauses (a) through (d) secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or held by
such Person, regardless of whether the indebtedness or other obligation secured
thereby shall have been assumed by such Person and (g) any and all deferrals,
renewals, extensions and refundings of, or amendments, modifications or
supplements to, any indebtedness, obligation or liability of the kind described
in clauses (a) through (f).
The term "Designated Senior Indebtedness" means the Company's
obligations under certain existing Senior Indebtedness and the Company's
obligations under any other particular Senior Indebtedness in which the
instrument creating or evidencing the same or the assumption or guarantee
thereof (or related agreements or documents to which the Company is a party)
expressly provides that such Senior Indebtedness shall be "Designated Senior
Indebtedness" for purposes of the Subordinated Debenture (provided that such
instrument, agreement or other document may place limitations and conditions on
the right of such Senior Indebtedness to exercise the rights of Designated
Senior Indebtedness).
The applicable Prospectus Supplement may further describe the
provisions, if any, applicable to the subordination of Subordinated Debt
Securities of a particular series offered thereby.
The Subordinated Debt Securities will be obligations exclusively of the
Company. Since the operations of the Company are partially conducted through its
subsidiaries, the cash flow and the consequent ability to service debt,
including the Subordinated Debt Securities, of the Company will be partially
dependent upon the earnings of any such subsidiaries and the distribution of
those earnings, or upon loans or other payments of funds by those subsidiaries,
to the Company. Such subsidiaries are separate and distinct legal entities and
have no obligation, contingent or otherwise, to pay any amounts due pursuant to
the Subordinated Debt Securities or to make any funds available therefor,
whether by dividends, distributions, loans or other payments. In addition, the
payment of dividends or distributions and the making of loans and advances to
the Company by any such subsidiaries could be subject to statutory or
contractual restrictions, could be contingent upon the earnings of those
subsidiaries and are subject to various business considerations.
Any right of the Company to receive any assets of any of its
subsidiaries upon their liquidation or reorganization (and the consequent right
of the Holders of the Subordinated Debt Securities to participate in those
assets) will be effectively subordinated to the claims of the subsidiary's
creditors (including trade creditors), except to the extent that the Company is
itself recognized as a creditor of such subsidiary, in which case the claims of
the Company would still be subordinate to any security interest in the assets of
such subsidiary and any indebtedness of such subsidiary senior to that held by
the Company.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness, which may include indebtedness that is senior to
the Subordinated Debt Securities, but subordinate to other obligations of the
Company. The Senior Debt Securities, when issued, will constitute Senior
Indebtedness.
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FORM, EXCHANGE AND TRANSFER
The Debt Securities of each series will be issuable only in fully
registered form, without coupons, and, unless otherwise specified in the
applicable Prospectus Supplement, only in denominations of $1,000 and integral
multiples thereof. (Section 302)
At the option of the Holder, subject to the terms of the Indentures and
the limitations applicable to Global Securities, Debt Securities of each series
will be exchangeable for other Debt Securities of the same series of any
authorized denomination and of a like tenor and aggregate principal amount.
(Section 305)
Subject to the terms of the Indentures and the limitations applicable to
Global Securities, Debt Securities may be presented for exchange as provided
above or for registration of transfer (duly endorsed or with the form of
transfer endorsed thereon duly executed) at the office of the Security Registrar
or at the office of any transfer agent designated by the Company for such
purpose. No service charge will be imposed for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. The Company
has appointed the Trustee as Security Registrar. Any transfer agent (in addition
to the Security Registrar) initially designated by the Company for any Debt
Securities will be named in the applicable Prospectus Supplement. (Section 305)
The Company may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that the Company will be required to
maintain a transfer agent in each Place of Payment for the Debt Securities of
each series. (Section 1002)
If the Debt Securities of any series (or of any series and specified
tenor) are to be redeemed in part, the Company will not be required to (i)
issue, register the transfer of or exchange any Debt Security of that series (or
of that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of any such Debt Security that may be selected for
redemption and ending at the close of business on the day of such mailing or
(ii) register the transfer of or exchange any Debt Security so selected for
redemption, in whole or in part, except the unredeemed portion of any such Debt
Security being redeemed in part. (Section 305)
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more global securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby (a
"Global Security"). Each Global Security will be registered in the name of a
depositary (the "Depositary") or a nominee thereof identified in the applicable
Prospectus Supplement, will be deposited with such Depositary or nominee or a
custodian therefor and will bear a legend regarding the restrictions on
exchanges and registration of transfer thereof referred to below and any such
other matters as may be provided for pursuant to the Indentures.
Notwithstanding any provision of the Indentures or any Debt Security
described herein, no Global Security may be exchanged in whole or in part for
Debt Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for
such Global Security or any nominee of such Depositary unless (i) the Depositary
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or has ceased to be qualified to act as such
as required by the Indentures, (ii) there shall have occurred and be continuing
an Event of Default with respect to the Debt Securities represented by such
Global Security or (iii) there shall exist such circumstances, if any, in
addition to or in lieu of those described above as may be described in the
applicable Prospectus Supplement. All securities issued in exchange for a Global
Security or any portion thereof will be registered in such names as the
Depositary may direct. (Sections 204 and 305)
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities represented thereby for all purposes under the Debt Securities and
the Indentures. Except in the limited circumstances referred to above, owners of
beneficial interests in a Global Security will not be entitled to have such
Global Security or any Debt Securities represented thereby registered in their
names, will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange therefor and will not be considered to
be the owners or Holders of such Global Security or any Debt Securities
represented thereby for any purpose under the Debt Securities or the Indentures.
All payments of principal of and any premium and interest on a Global Security
will be made to the Depositary or its nominee, as the case
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may be, as the Holder thereof. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of such securities in
definitive form. These laws may impair the ability to transfer beneficial
interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited
to institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary
(with respect to participants' interests) or any such participant (with respect
to interests of persons held by such participants on their behalf).
Payments, transfers, exchanges and others matters relating to beneficial
interests in a Global Security may be subject to various policies and procedures
adopted by the Depositary from time to time. None of the Company, the Trustee or
any agent of the Company or the Trustee will have any responsibility or
liability for any aspect of the Depositary's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of interest on a Debt Security on any Interest Payment Date will be made
to the Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Company may designate for such purpose from time to time, except that at the
option of the Company payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable Prospectus Supplement,
the Corporate Trust Office of the Trustee will be designated as the Company's
sole Paying Agent for payments with respect to Debt Securities of each series.
Any other Paying Agents initially designated by the Company for the Debt
Securities of a particular series will be named in the applicable Prospectus
Supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that the Company will be required to
maintain a Paying Agent in each Place of Payment for the Debt Securities of a
particular series. (Section 1002)
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed for a period ending the earlier of 10 business days prior to the date
such money would escheat to the State or at the end of two years after such
principal, premium or interest has become due and payable will be repaid to the
Company, and the Holder of such Debt Security thereafter may look only to the
Company for payment thereof. (Section 1003)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indentures will provide that the Company may not consolidate with or
merge into any other Person (in a transaction in which the Company is not the
surviving corporation), or convey, transfer or lease its properties and assets
substantially as an entirety to, any Person (a "Successor Person"),unless (i)
the Successor Person (if any) is a corporation, limited liability company,
partnership, trust or other entity organized and existing under the laws of the
United States, or any state thereof, and assumes the Company's obligations on
the Debt Securities and under the Indentures, (ii) immediately after giving
effect to the transaction, and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result of the transaction as
having been incurred by it at the time of the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing, and (iii) certain other
conditions are met. (Section 801)
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under each
Indenture with respect to Debt Securities of any series outstanding under such
Indenture (unless such event is specifically inapplicable to a particular series
as described in the
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Prospectus Supplement relating thereto): (a) failure to pay principal of
or any premium on any Debt Security of that series when due, whether or not such
payment is prohibited by the subordination provisions of the Subordinated
Indenture; (b) failure to pay any interest on any Debt Securities of that series
when due, continued for 30 days, whether or not such payment is prohibited by
the subordination provisions of the Subordinated Indenture; (c) failure to
deposit any sinking fund payment, when due, in respect of any Debt Security of
that series, whether or not such deposit is prohibited by the subordination
provisions of the Subordinated Indenture; (d) failure to perform any other
covenant of the Company in the Indenture (other than a covenant included in the
Indentures solely for the benefit of a series other than that series), continued
for 60 days after written notice has been given by the Trustee, or the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities of
that series, as provided in the Indentures; (e) certain events in bankruptcy,
insolvency or reorganization with respect to the Company; and (f) any other
Event of Default specified in the applicable Prospectus Supplement. (Section
501)
Each Indenture will provide that, if an Event of Default (other than an
Event of Default described in clause (e) above) with respect to the Debt
Securities of any series at the time Outstanding under such Indenture shall
occur and be continuing, either the Trustee or the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that series by
notice as provided in the Indenture may declare the principal amount of the Debt
Securities of that series (or, in the case of any Debt Security that is an
Original Issue Discount Security or the principal amount of which is not then
determinable, such portion of the principal amount of such Debt Security, or
such other amount in lieu of such principal amount, as may be specified in the
terms of such Debt Security) to be due and payable immediately. If an Event of
Default described in clause (e) above with respect to the Debt Securities of any
series at the time Outstanding shall occur, the principal amount of all the Debt
Securities of that series (or, in the case of any such Original Issue Discount
Security or other Debt Security, such specified amount) will automatically, and
without any action by the Trustee or any Holder, become immediately due and
payable. Any payment by the Company on the Subordinated Debt Securities
following any such acceleration will be subject to the subordination provisions
of Article Fifteen of the Subordinated Indenture. After any such acceleration,
but before a judgment or decree based on acceleration, the Holders of a majority
in aggregate principal amount of the Outstanding Securities of that series may,
under certain circumstances, rescind and annul such acceleration if all Events
of Default, other than the non-payment of accelerated principal (or other
specified amount), have been cured or waived as provided in the Indentures.
(Section 502) For information as to waiver of defaults, see "Modification and
Waiver."
Subject to the provisions of the Indentures relating to the duties of
the Trustee in case an Event of Default shall occur and be continuing, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indentures at the request or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable indemnity. (Section
603) Subject to such provisions for the indemnification of the Trustee, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Indentures, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series, (ii) the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities of
that series have made a written request, and such Holder or Holders have offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee and
(iii) the Trustee has failed to institute such proceeding, and has not received
from the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series a direction inconsistent with such request, within 60
days after such notice, request and offer. (Section 507) However, such
limitations do not apply to a suit instituted by a Holder of a Debt Security for
the enforcement of payment of the principal of or any premium or interest on
such Debt Security on or after the applicable due date specified in such Debt
Security. (Section 508)
Each Indenture will include a covenant requiring the Company to furnish
to the Trustee annually a statement by certain of its officers as to whether or
not the Company, to their knowledge, is in default in the performance or
observance of any of the terms, provisions and conditions of the Indenture and,
if so, specifying all such known defaults. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indentures may be made by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such modification or amendment; provided, however, that no such modification
or amendment may, without the consent of the Holder of each Outstanding Security
affected thereby, (a) change the Stated Maturity of the principal of, or any
installment of
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principal of or interest on, any Debt Security, (b) reduce the principal amount
of, or any premium or interest on, any Debt Security, (c) reduce the amount of
principal of an Original Issue Discount Security or any other Debt Security
payable upon acceleration of the Maturity thereof, (d) change the place or
currency of payment of principal of, or any premium or interest on, any Debt
Security, (e) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security, (f) in the case of Subordinated
Debt Securities, modify the subordination provisions in a manner materially
adverse to the Holders of the Subordinated Debt Securities, (g) in the case of
Debt Securities that are convertible or exchangeable into Securities or other
securities of the Company, adversely affect the right of Holders to convert or
exchange any of the Debt Securities other than as provided in or pursuant to the
Indentures, (h) reduce the percentage in principal amount of Outstanding
Securities of any series, the consent of whose Holders is required for
modification or amendment of the Indentures, (i) reduce the percentage in
principal amount of Outstanding Securities of any series necessary for waiver of
compliance with certain provisions of the Indentures or for waiver of certain
defaults or (j) modify such provisions with respect to modification and waiver.
(Section 902)
The Indentures will provide that the Holders of a majority in aggregate
principal amount of the Outstanding Securities of any series may waive, on
behalf of the Holders of all Debt Securities of such series, compliance by the
Company with certain restrictive provisions of the Indentures. (Sections 1010
and 1008 of the Senior Indenture and the Subordinated Indenture, respectively)
The Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may, on behalf of all Holders of Debt Securities of
that Series, waive any past default under the Indenture with respect to Debt
Securities of that Series, except a default (a) in the payment of principal of
or premium or interest on any Debt Security of that series or (b) in respect of
a covenant or provision of the Indenture which cannot be amended without the
consent of the Holder of each Outstanding Security of such series affected.
(Section 513)
Each Indenture will provide that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities have given or taken
any direction, notice, consent, waiver or other action under the Indenture as of
any date, (i) the principal amount of an Original Issue Discount Security that
will be deemed to be Outstanding will be the amount of the principal thereof
that would be due and payable as of such date upon acceleration of the Maturity
thereof to such date, (ii) if, as of such date, the principal amount payable at
the Stated Maturity of a Debt Security is not determinable (for example, because
it is based on an index), the principal amount of such Debt Security deemed to
be Outstanding as of such date will be an amount determined in the manner
prescribed for such Debt Security and (iii) the principal amount of a Debt
Security denominated in one or more foreign currencies or currency units that
will be deemed to be Outstanding will be the U.S. dollar equivalent, determined
as of such date in the manner prescribed for such Debt Security, of the
principal amount of such Debt Security (or, in the case of a Debt Security
described in clause (i) or (ii) above, of the amount described in such clause).
Certain Debt Securities, including those for whose payment or redemption money
has been deposited or set aside in trust for the Holders and those that have
been fully defeased pursuant to Section 1302, will not be deemed to be
Outstanding. (Section 101)
Except in certain limited circumstances, the Company will be entitled to
set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give or take any direction,
notice, consent, waiver or other action under the Indentures, in the manner and
subject to the limitations provided in the Indentures. In certain limited
circumstances, the Trustee will be entitled to set a record date for action by
Holders. If a record date is set for any action to be taken by Holders of a
particular series, such action may be taken only by persons who are Holders of
Outstanding Securities of that series on the record date. To be effective, such
action must be taken by Holders of the requisite principal amount of such Debt
Securities within a specified period following the record date. For any
particular record date, this period will be 180 days or such other shorter
period as may be specified by the Company (or the Trustee, if it set the record
date), and may be shortened or lengthened (but not beyond 180 days) from time to
time. (Section 104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement,
the Company may elect, at its option at any time, to have the provisions of
Section 1302, relating to defeasance and discharge of indebtedness, or Section
1303, relating to defeasance of certain restrictive covenants in the Indentures,
applied to the Debt Securities of any series, or to any specified part of a
series. (Section 1301)
Defeasance and Discharge. The Indentures will provide that, upon the
Company's exercise of its option (if any) to have Section 1302 applied to any
series (or part thereof) of Debt Securities than with respect to any series of
Subordinated Debt Securities, the provisions of Article Fifteen of the
Subordinated Indenture relating to subordination will cease to be effective and,
with respect to any series (or part thereof) of Debt Securities, the Company
will be discharged from all its
13
<PAGE> 17
obligations with respect thereto (except for certain obligations to exchange or
register the transfer of Debt Securities, to replace stolen, lost or mutilated
Debt Securities, to maintain paying agencies, to hold moneys for payment in
trust and, if applicable, to effect conversion of Debt Securities) upon the
deposit in trust for the benefit of the Holders of such Debt Securities of money
or U.S. Government Obligations, or both, which, through the payment of principal
and interest in respect thereof in accordance with their terms, will provide
money in an amount sufficient to pay the principal of and any premium and
interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the Indentures and such Debt Securities. Such
defeasance or discharge may occur only if, among other things, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the Company
has received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in either case
to the effect that Holders of such Debt Securities will not recognize gain or
loss for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit,
defeasance and discharge were not to occur. (Sections 1302 and 1304)
Defeasance of Certain Covenants. The Indentures will provide that, upon
the Company's exercise of its option (if any) to have Section 1303 applied to
any Debt Securities, the Company may omit to comply with certain restrictive
covenants, including any that may be described in the applicable Prospectus
Supplement, and the occurrence of certain Events of Default, which are described
above in clause (d) (with respect to such restrictive covenants) under "Events
of Default" and any that may be described in the applicable Prospectus
Supplement, will be deemed not to be or result in an Event of Default, in each
case with respect to such Debt Securities, and, in the case of the Subordinated
Indenture, the provisions of Article Fifteen relating to subordination will
cease to be effective with respect to any Subordinated Debt Securities. The
Company, in order to exercise such option, will be required to deposit, in trust
for the benefit of the Holders of such Debt Securities, money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance with the terms of
the Indentures and such Debt Securities. The Company will also be required,
among other things, to deliver to the Trustee an Opinion of Counsel to the
effect that Holders of such Debt Securities will not recognize gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would have been the case if
such deposit and defeasance were not to occur. In the event the Company
exercised this option with respect to any Debt Securities and such Debt
Securities were declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations so deposited in
trust would be sufficient to pay amounts due on such Debt Securities at the time
of their respective Stated Maturities but may not be sufficient to pay amounts
due on such Debt Securities upon any acceleration resulting from such Event of
Default. In such case, the Company would remain liable for such payments.
(Sections 1303 and 1304)
The Company may, at its option, satisfy and discharge each of the
Indentures (except for certain obligations of the Company and the Trustee,
including, among others the obligations to apply money held in trust) when (i)
either (a) all Debt Securities under such Indenture previously authenticated and
delivered (other than (1) Debt Securities that were destroyed, lost or stolen
and that have been replaced or paid and (2) Debt Securities for the payment of
which money has been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust) have
been delivered to the Trustee for cancellation or discharge from such trust)
have been delivered to the Trustee for cancellation or (b) all such Debt
Securities under such Indenture not theretofore delivered to the Trustee for
cancellation (1) have become due and payable, (2) will become due and payable at
their Stated Maturity within one year, or (3) are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name and at the expense of the
Company, and the Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount sufficient to pay and
discharge the entire indebtedness on such Debt Securities under such Indenture
not previously delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Debt Securities
under such Indenture which have become due and payable) or to the Stated
Maturity or redemption date as the case may be, (ii) the Company has paid or
caused to be paid all other sums payable under such Indenture by the Company,
and (iii) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each to the effect that all conditions precedent relating
to the satisfaction and discharge of such Indenture have been satisfied.
NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register.(Sections
101 and 106)
14
<PAGE> 18
TITLE
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes. (Section 308)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and
construed in accordance with, the law of the State of New York. (Section 112)
REGARDING THE TRUSTEE
The Indentures contain certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. (Section 613) The Trustee is
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest and there is a default under the Securities of any series
for which the Trustee serves as trustee, the Trustee must eliminate such
conflict or resign. (Section 608)
PLAN OF DISTRIBUTION
The Company may sell the Securities separately or together, (i) to one
or more underwriters or dealers for public offering and sale by them and (ii) to
investors directly or (iii) through agents. 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 from time to time), at market prices prevailing
at the times of sale, at prices related to such prevailing market prices or at
negotiated prices. Each Prospectus Supplement will describe the method of
distribution of the Securities offered thereby.
In connection with the sale of the Securities, underwriters, dealers or
agents may receive compensation from the Company or from purchasers of the
Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. The underwriters, dealers or agents which
participate in the distribution of the Securities may be deemed to be
underwriters under the Securities Act and any discounts or commissions received
by them and any profit on the resale of the Securities received by them may be
deemed to be underwriting discounts and commissions thereunder. Any such
underwriter, dealer or agent will be identified and any such compensation
received from the Company will be described in the Prospectus Supplement. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Under agreements that may be entered into with the Company,
underwriters, dealers and agents may be entitled to indemnification by the
Company against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which the
underwriters, dealers or agents may be required to make in respect thereof.
The Company may grant underwriters who participate in the distribution
of Securities an option to purchase additional Securities to cover
over-allotments, if any.
All Debt Securities will be new issues of securities with no
established trading market. Any underwriters to whom Debt Securities are sold
by the Company for public offering and sale may make a market in such
securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Debt Securities.
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
LEGAL MATTERS
The validity of the issuance of the Securities offered hereby will be
passed upon for the Company by Fenwick & West LLP, Palo Alto, California.
Certain legal matters relating to the Securities offered will be passed on for
any underwriters by the counsel for such underwriters named in the applicable
Prospectus Supplement.
EXPERTS
The consolidated financial statements and schedule of Intuit Inc.
appearing in Intuit Inc.'s Annual Report (Form 10-K) for the year ended July 31,
1997, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements and schedule are
15
<PAGE> 19
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
16
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The aggregate estimated expenses to be paid by the Registrant in
connection with this offering are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee........ $ 88,500
Nasdaq National Market filing fee.......................... 17,500
Trustee's fees and expenses ............................... 10,000
Accounting fees and expenses............................... 150,000
Legal fees and expenses.................................... 150,000
Printing and engraving..................................... 100,000
Blue sky fees and expenses................................. 15,000
Transfer agent fees and expenses........................... 15,000
Rating agencies' fees ..................................... 100,000
Miscellaneous.............................................. 29,000
------
Total............................................... $675,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law,
Intuit's Certificate of Incorporation includes a provision that eliminates the
personal liability of its directors for monetary damages for breach or alleged
breach of their duty of care. In addition, as permitted by Section 145 of the
Delaware General Corporation Law, the Bylaws of Intuit provide that: (i) Intuit
is required to indemnify its directors and officers and persons serving in such
capacities in other business enterprises (including, for example, subsidiaries
of Intuit) at Intuit's request, to the fullest extent permitted by Delaware law,
including those circumstances in which indemnification would otherwise be
discretionary; (ii) Intuit may, in its discretion, indemnify employees and
agents in those circumstances where indemnification is not required by law;
(iii) Intuit is required to advance expenses, as incurred, to its directors and
officers in connection with defending a proceeding (except that it is not
required to advance expenses to a person against whom Intuit brings a claim for
breach of the duty of loyalty, failure to act in good faith, intentional
misconduct, knowing violation of law or deriving an improper personal benefit);
(iv) the rights conferred in the Bylaws are not exclusive and Intuit is
authorized to enter into indemnification agreements with its directors, officers
and employees; and (v) Intuit may not retroactively amend the Bylaw provisions
in a way that is adverse to such directors, officers and employees.
Intuit's policy is to enter into indemnity agreements with each of its
directors and executive officers that provide the maximum indemnity allowed to
directors and executive officers by Section 145 of the Delaware General
Corporation Law and the Bylaws, as well as certain additional procedural
protections. In addition, the indemnity agreements provide that directors and
executive officers will be indemnified to the fullest possible extent not
prohibited by law against all expenses (including attorney's fees) and
settlement amounts paid or incurred by them in any action or proceeding,
including any derivative action by or in the right of Intuit, on account of
their services as directors or executive officers of Intuit or as directors or
officers of any other company or enterprise when they are serving in such
capacities at the request of Intuit. Intuit will not be obligated pursuant to
the agreements to indemnify or advance expenses to an indemnified party with
respect to proceedings or claims initiated by the indemnified party and not by
way of defense, except with respect to proceedings specifically authorized by
Intuit's Board of Directors or brought to enforce a right to indemnification
under the Indemnity Agreement, Intuit's Bylaws or any statute or law. Under the
agreements, Intuit is not obligated to indemnify the indemnified party (i) for
any expenses incurred by the indemnified party with respect to any proceeding
instituted by the indemnified party to enforce or interpret the agreement, if a
court of competent jurisdiction determines that each of the material assertions
made by the indemnified party in such proceeding was not made in good faith or
was frivolous; (ii) for any amounts paid in settlement of a proceeding unless
Intuit consents to such settlement; (iii) with respect to any proceeding brought
by Intuit against the indemnified party for willful misconduct, unless a court
determines that each of such claims was not made in good faith or was frivolous;
(iv) on account of any suit in which judgment is rendered against the
indemnified party for an accounting of profits made from the purchase or sale by
the indemnified party of securities of Intuit pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and related laws; (v) on
account of the indemnified party's conduct which is finally adjudged to have
been knowingly fraudulent or deliberately dishonest, or to constitute willful
misconduct or a knowing violation of the law; or (iv) on account of any conduct
from which the indemnified party believed to be contrary to the best interests
of Intuit or its
II-1
<PAGE> 21
stockholders; (viii) on account of conduct that constituted a breach of the
indemnified party's duty of loyalty to Intuit or its stockholders; or (iv) if a
final decision by a court having jurisdiction in the matter shall determine that
such indemnification is not lawful.
The indemnification provision in the Bylaws, and the indemnity
agreements entered into between Intuit and its directors and executive officers,
may be sufficiently broad to permit indemnification of Intuit's officers and
directors for liabilities arising under the Securities Act of 1933, as amended
(the "Securities Act").
The indemnity agreements require Intuit to maintain director and officer
liability insurance to the extent reasonably available. Intuit currently carries
a director and officer liability insurance policy following the offering with a
per claim and annual aggregate coverage limit of $15,000,000.
The form(s) of proposed Underwriting Agreement(s) to be filed as (an)
Exhibit(s) hereto or incorporated by reference herein may include provisions
regarding the indemnification of officers and directors of the registrant by the
several Underwriters.
ITEM 16. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference herein:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
- ------- -------------
<S> <C>
1.01 Form(s) of Underwriting Agreement(s).*
4.01 Form of Senior Indenture.*
4.02 Form of Subordinated Indenture.*
4.03 Form of Senior Debt Security (included in Exhibit 4.1).*
4.04 Form of Subordinated Debt Security (included in Exhibit 4.02).*
5.01 Opinion of Fenwick & West LLP.*
12.01 Computation of Ratios of Earnings to Fixed Charges.
23.01 Consent of Ernst & Young LLP, independent auditors.*
23.02 Consent of Fenwick & West LLP (included in Exhibit 5.01).*
24.01 Power of Attorney of certain directors and officers of the registrant
(contained on Page II-4).
25.01 Form T-1 Statement of Eligibility and Qualification of Trustee for
Senior Indenture under the Trust Indenture Act of 1939.*
25.02 Form T-1 Statement of Eligibility and Qualification of Trustee for
Subordinated Indenture under the Trust Indenture Act of 1939.*
</TABLE>
- ----------------
* To be filed by amendment or by a report on Form 8-K pursuant to Section 601
of Regulation S-K.
II-2
<PAGE> 22
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that clauses (i) and (ii) do not apply of the
information required to be included in a post-effective amendment by this
section (iii) is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section n13 or
Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by its is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) of (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the
time it was declared effective.
II-3
<PAGE> 23
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
II-4
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Palo Alto, State of California, on this 17th day
of April, 1998.
INTUIT INC.
By: /s/ GREG J. SANTORA
----------------------------------------
Greg J. Santora
Vice President; Chief Financial Officer
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints William Harris and Greg Santora, and each of
them, his attorneys-in-fact and agents, each with the power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to sign any registration statement for the same offering covered
by this Registration Statement that is to be effective upon filing pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto and all
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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ WILLIAM V. CAMPBELL President, Chief Executive April 17, 1998
- -----------------------------------
William V. Campbell Officer and Director
PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER:
/s/ GREG J. SANTORA Vice President, Chief April 17, 1998
- -----------------------------------
Greg J. Santora Financial Officer
ADDITIONAL DIRECTORS:
/s/ SCOTT D. COOK Chairman of the Board of April 17, 1998
- -----------------------------------
Scott D. Cook Directors
/s/ CHRISTOPHER W. BRODY Director April 17, 1998
- -----------------------------------
Christopher W. Brody
/s/ L. JOHN DOERR Director April 17, 1998
- -----------------------------------
L. John Doerr
/s/ MICHAEL R. HALLMAN Director April 17, 1998
- -----------------------------------
Michael R. Hallman
/s/ BURTON J. MCMURTRY Director April 17, 1998
- -----------------------------------
Burton J. McMurtry
</TABLE>
II-5
<PAGE> 25
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
- ------- -------------
<S> <C>
1.01 Form(s) of Underwriting Agreement(s).*
4.01 Form of Senior Indenture.*
4.02 Form of Subordinated Indenture.*
4.03 Form of Senior Debt Security (included in Exhibit 4.1).*
4.04 Form of Subordinated Debt Security (included in Exhibit 4.02).*
5.01 Opinion of Fenwick & West LLP.*
12.01 Computation of Ratios of Earnings to Fixed Charges.
23.01 Consent of Ernst & Young LLP, independent auditors.*
23.02 Consent of Fenwick & West LLP (included in Exhibit 5.01).*
24.01 Power of Attorney of certain directors and officers of the registrant
(contained on Page II-4).
25.01 Form T-1 Statement of Eligibility and Qualification of Trustee for
Senior Indenture under the Trust Indenture Act of 1939.*
25.02 Form T-1 Statement of Eligibility and Qualification of Trustee for
Subordinated Indenture under the Trust Indenture Act of 1939.*
</TABLE>
- ----------------
* To be filed by amendment or by a report on Form 8-K pursuant to Section 601
of Regulation S-K.
<PAGE> 1
EXHIBIT 12.01
INTUIT, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Ten Six
Year Months Years Ended Months
Ended Ended July 31, Ended
Sept. 30, July 31, ------------------------------- Jan. 31,
1993 1994 1995 1996 1997 1998
--------- --------- -------- -------- ------- --------
(In thousands, except ratios)
<S> <C> <C> <C> <C> <C> <C>
Earnings: ...................................
Income before tax provision................ $14,770 $(181,493) $(20,000) $1,870 $ 9,809 $48,618
Fixed charges ............................. 268 188 812 1,181 1,569 705
------- --------- -------- ------ ------- -------
Total ................................... $15,038 $(181,305) $(19,188) $3,051 $12,559 $49,323
======= ========= ======== ====== ======= =======
Fixed charges: ..............................
Interest expense .......................... $ 79 $ 8 $ 232 $ 305 $ 652 $ 234
Portion of rent deemed to be interest ..... 189 180 580 876 917 471
------- --------- -------- ------ ------- -------
Total ................................... $ 268 $ 188 $ 812 $1,181 $ 1,569 $ 705
======= ========= ======== ====== ======= =======
Ratio of earnings to fixed charges .......... 56.17 (1) (2) 2.58 8.00 69.96
======= ========= ======== ====== ======= =======
</TABLE>
- --------------
(1) Earnings were inadequate to cover fixed charges by $181,117.
(2) Earnings were inadequate to cover fixed charges by $18,376.
