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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 6, 1998
REGISTRATION NO. 333-63739
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT
NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTUIT INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 77-0034661
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
</TABLE>
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
P.O. BOX 7850
MOUNTAIN VIEW, CALIFORNIA 94039-7850
(650) 944-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
GORDON K. DAVIDSON, ESQ.
KENNETH A. LINHARES, ESQ.
EILEEN DUFFY ROBINETT, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
(650) 494-0600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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. [ ]
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 IS
A COMBINED PROSPECTUS AND ALSO RELATES TO AN AGGREGATE OF $26,250,000 OF THE
REGISTRANT'S COMMON STOCK, PREFERRED STOCK AND DEBT SECURITIES PREVIOUSLY
REGISTERED ON FORM S-3, REGISTRATION NO. 333-50417. THIS REGISTRATION STATEMENT
ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO.
333-50417. SUCH POST-EFFECTIVE AMENDMENT SHALL BECOME EFFECTIVE CONCURRENTLY
WITH THE EFFECTIVENESS OF THIS REGISTRATION STATEMENT IN ACCORDANCE WITH SECTION
8(C) OF THE SECURITIES ACT OF 1933, AS AMENDED.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED OCTOBER 6, 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") will set 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 the 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 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 4 HEREOF.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THE DISCLOSURES IN THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is October , 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. Information regarding the operation of the Public Reference Room may be
obtained by calling the Commission at 1-800-SEC-0330. 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.
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 current report on Form 8-K dated May 18, 1998.
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(c) The Company's current report on Form 8-K/A, Amendment No. 2, dated
May 18, 1998 and filed on May 22, 1998.
(d) The Company's current report on Form 8-K dated June 22, 1998 and
filed on July 6, 1998.
(e) The Company's current report on Form 8-K/A, Amendment No. 1, dated
June 22, 1998 and filed on September 8, 1998.
(f) 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.
(g) The description of the Company's Preferred Stock Purchase Rights
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, P.O. Box 7850, Mountain View,
California 94039-7850 (telephone number (650) 944-2713).
3
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THE COMPANY
Intuit develops, markets and supports personal finance, small business
accounting, tax preparation and other software products, and related 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, P.O. Box 7850, Mountain View, California
94039-7850. 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.
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 a reasonable approximation of the interest factor under
operating leases.
<TABLE>
<CAPTION>
YEAR ENDED TEN MONTHS ENDED YEARS ENDED JULY 31,
SEPTEMBER 30, JULY 31, -------------------------------------------------------------------------
1993 1994 1995 1996 1997 1998
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<S> <C> <C> <C> <C> <C>
14.99 (1) (2) (3) 2.82 (4)
</TABLE>
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(1) Earnings were inadequate to cover fixed charges by $181.49 million.
(2) Earnings were inadequate to cover fixed charges by $20.00 million.
(3) Earnings were inadequate to cover fixed charges by $1.87 million.
(4) Earnings were inadequate to cover fixed charges by $19.823 million.
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.
4
<PAGE> 6
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 September 30, 1998,
there were 59,480,974 shares of Common Stock outstanding held by approximately
800 stockholders 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.
RIGHTS PLAN
On April 29, 1998, the Company's Board of Directors entered into a Rights
Agreement (the "Rights Agreement") with American Stock Transfer and Trust
Company, as Rights Agent (the "Rights Agent"), and, in connection therewith,
declared a dividend of one purchase right (a "Right") for Series B Junior
Participating Preferred Stock, par value $0.01 per share (the "Series B
Preferred Shares") for each outstanding share of common stock, par value $0.01
per share (the "Common Shares"), of the Company. The Rights Agreement was
amended on October 5, 1998. The rights, preferences and privileges of the Series
B Preferred Shares are summarized below under "Description of the Preferred
Stock." The dividend was payable to stockholders of record on May 11, 1998 (the
"Record Date"). In addition, one Right will be issued with each Common Share
that becomes outstanding (i) between the Record Date and the earliest of the
Distribution Date, the Redemption Date and the Final Expiration Date (as such
terms are defined in the Rights Agreement) or (ii) following the Distribution
Date and prior to the Redemption Date or Final Expiration Date, pursuant to the
exercise of stock options or under any employee plan or arrangement or upon the
exercise, conversion or exchange of other securities of the Company, which
options or securities were outstanding prior to the Distribution Date. Each
Right entitles the registered holder to purchase from the Company one
one-thousandth of a Series B Preferred Share of the Company, at a price of
$250.00 per one one-thousandth of a Series B Preferred Share (the "Purchase
Price"), subject to adjustment. The description and terms of the Rights are set
forth in the Rights Agreement, and the summary of the Rights included herein is
qualified by reference to the Rights Agreement.
Until the earlier to occur of (i) 10 days following a public announcement
or disclosure that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired beneficial ownership of 20% (the "Designated
Percentage") or more of the outstanding Common Shares or (ii) 10 business days
(or such later date as may be determined by action of the Board of Directors)
following the announcement of an intention to make a tender offer or exchange
offer the consummation of which would result in a person or group becoming an
Acquiring Person (the earlier of such dates being called the "Distribution
Date"), the Rights will be evidenced, with respect to any of the Common Share
certificates outstanding as of the Record Date, by such Common Share
certificates with a copy of a Summary of Rights attached thereto. No person
shall become an Acquiring Person if the Board of Directors of the Company
determines in good faith that a person who would otherwise be an Acquiring
Person has become such inadvertently, and such person as promptly as practicable
takes such actions as may be necessary so that such person would no longer be
considered an Acquiring Person.
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The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Common Shares. Until the Distribution
Date (or earlier redemption or expiration of the Rights), new Common Share
certificates issued after the Record Date, upon transfer or new issuance of
Common Shares, will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or expiration of
the Rights), the surrender for transfer of any certificates for Common Shares
outstanding as of the Record Date, even without such notation or a copy of this
Summary of Rights being attached thereto, will also constitute the transfer of
the Rights associated with the Common Shares represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of record
of the Common Shares as of the close of business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on May 1, 2008 (the "Final Expiration Date"), unless the Final Expiration
Date is extended or unless the Rights are earlier redeemed or exchanged by the
Company, in each case, as described below.
The Purchase Price payable, and the number of Series B Preferred Shares or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Series B
Preferred Shares, (ii) upon the grant to holders of the Series B Preferred
Shares of certain rights or warrants to subscribe for or purchase Series B
Preferred Shares at a price, or securities convertible into Series B Preferred
Shares with a conversion price, less than the then current market price of the
Series B Preferred Shares or (iii) upon the distribution to holders of the
Series B Preferred Shares of evidences of indebtedness or assets (excluding
regular periodic cash dividends paid out of earnings or retained earnings or
dividends payable in Series B Preferred Shares) or of subscription rights or
warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-thousandths of a
Series B Preferred Share issuable upon exercise of each Right are also subject
to adjustment in the event of a stock dividend on the Common Shares payable in
Common Shares or subdivisions, consolidations or combinations of the Common
Shares occurring, in any such case, prior to the Distribution Date.
In the event that any person becomes an Acquiring Person, unless the event
causing the Designated Percentage threshold to be crossed and the Person to
thereby become an Acquiring Person is a merger, acquisition or other business
combination described in the next paragraph, each holder of a Right, other than
Rights beneficially owned by the Acquiring Person (which will thereafter be
void), will thereafter have the right to receive upon exercise that number of
Common Shares having a market value of two times the exercise price of the Right
on the terms and conditions set forth in the Rights Agreement. If the Company
does not have authorized but unissued Common Shares sufficient to satisfy such
obligation to issue Common Shares, the Company is obligated to deliver upon
payment of the exercise price of a Right an amount of cash or other securities
equivalent in value to the Common Shares issuable upon exercise of a Right.
In the event that any person or group becomes an Acquiring Person and the
Company merges into or engages in certain other business combination
transactions with an Acquiring Person, or 50% or more of its consolidated assets
or earning power are sold to an Acquiring Person, each holder of a Right, other
than Rights beneficially owned by an Acquiring Person, will thereafter have the
right to receive, upon the exercise thereof at the then current exercise price
of the Right, that number of shares of common stock of the acquiring company
which at the time of such transaction will have a market value of two times the
exercise price of the Right.
At any time after any person becomes an Acquiring Person and prior to the
acquisition by such person or group of 50% or more of the outstanding Common
Shares, the Board of Directors of the Company may exchange the Rights (other
than Rights owned by such person or group which have become void), in whole or
in part, at an exchange ratio of one Common Share, or one one-thousandth of a
Series B Preferred Share (or of a share of a class or series of the Company's
preferred stock having equivalent rights, preferences and privileges), per Right
(subject to adjustment).
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With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Series B Preferred Shares will be issued
(other than fractions which are integral multiples of one one-thousandth of a
Series B Preferred Share, which may, at the election of the Company, be
evidenced by depository receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Series B Preferred Shares on the
last trading day prior to the date of exercise.
At any time prior to such time as a person or group becomes an Acquiring
Person, the Board of Directors of the Company may redeem the Rights in whole,
but not in part, at a price of $0.001 per Right (the "Redemption Price"). The
redemption of the Rights may be made effective at such time, on such basis and
with such conditions as the Board of Directors in its sole discretion may
establish. After the period for redemption of the Rights has expired, the Board
may not amend the Rights Agreement to extend the period for redemption of the
Rights. Immediately upon any redemption of the Rights, the right to exercise the
Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
The terms of the Rights may be amended by a resolution of the Board of
Directors without the consent of the holders of the Rights, except that from and
after such time as any person or group becomes an Acquiring Person, no such
amendment may adversely affect the interests of the holders of the Rights (other
than an Acquiring Person).
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
incorporated by reference into the Registration Statement of which this
Prospectus is a part.
The Rights approved by the Board are designed to protect and maximize the
value of the outstanding equity interests in the Company in the event of an
unsolicited attempt by an acquiror to take over the Company, in a manner or on
terms not approved by the Board of Directors. Takeover attempts frequently
include coercive tactics to deprive the Company's Board of Directors and its
stockholders of any real opportunity to determine the destiny of the Company.
The Rights have been declared by the Board in order to deter such tactics,
including a gradual accumulation of shares in the open market of a 15% or
greater position to be followed by a merger or a partial or two-tier tender
offer that does not treat all stockholders equally. These tactics unfairly
pressure stockholders, squeeze them out of their investment without giving them
any real choice and deprive them of the full value of their shares. The Rights
are not intended to prevent a takeover of the Company and will not do so.
Because the Rights may be redeemed by the Company, they should not interfere
with any merger or business combination approved by the Board of Directors.
Issuance of the Rights does not in any way weaken the financial strength of
the Company or interfere with its business plans. The issuance of the Rights
themselves has no dilutive effect, will not affect reported earnings per share,
should not be taxable to the Company or to its stockholders and will not change
the way in which the Company's shares are presently traded. The Company's Board
of Directors believes that the Rights represent a sound and reasonable means of
addressing the complex issues of corporate policy created by the current
takeover environment. However, the Rights may have the effect of rendering more
difficult or discouraging an acquisition of the Company deemed undesirable by
the Board of Directors. The Rights may cause substantial dilution to a person or
group that attempts to acquire the Company on terms or in a manner not approved
by the Company's Board of Directors, except pursuant to an offer conditioned
upon the negation, purchase or redemption of the Rights.
DELAWARE'S ANTI-TAKEOVER LAW
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
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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." 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.
TRANSFER AGENT AND REGISTRAR AND LISTING
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 1,344,918 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. Of such shares, (i) a total of 144,918 have
been designated as Series A Preferred Stock and are authorized but unissued and
(ii) 200,000 shares have been designated as Series B Junior Participating
Preferred Stock, $0.01 par value per share, with the rights described below, and
have been reserved for issuance pursuant to the Rights Agreement discussed
above.
The Series B Preferred Shares purchasable upon exercise of the Rights
(defined above) issued in connection with the Rights Agreement (as defined
above) will not be redeemable. Each Series B Preferred Share will be entitled to
a quarterly dividend payment of 1,000 times the dividend declared per Common
Share. In the event of liquidation, each Series B Preferred Share will be
entitled to a $10.00 preference, and thereafter the holders of the Series B
Preferred Shares will be entitled to an aggregate payment of 1,000 times the
aggregate payment made per Common Share. Each Series B Preferred Share will have
1,000 votes, voting together with the Common Shares. Finally, in the event of
any merger, consolidation or other transaction in which Common Shares are
exchanged, each Series B Preferred Share will be entitled to receive 1,000 times
the amount received per Common Share. These rights are protected by customary
antidilution provisions. Because of the nature of the Series B Preferred Shares'
dividend, liquidation and voting rights, the value of the one one-thousandth
interest in a Series B Preferred Share purchasable upon exercise of each Right
should approximate the value of one Common Share.
With respect to the remaining authorized but undesignated shares of
Preferred Stock, the Board of Directors may authorize and issue Preferred Stock
with voting or conversion rights that could adversely affect the voting power or
other rights of the holders of Common Stock, because the terms of the Preferred
Stock that might be issued could conceivably prohibit the Company's consummation
of any merger, reorganization, sale of substantially all its assets, liquidation
or other extraordinary corporate transaction without approval of the outstanding
shares of Preferred Stock. Thus, 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
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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 redemption at the option
of the Company or at the option of the holders thereof), 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, or any other
securities or assets, 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.
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 Chase Manhattan Bank and Trust Company, National Association, 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.
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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 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
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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, to 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. Upon any distribution of
assets of the Company to creditors upon any dissolution or winding-up or
liquidation or reorganization of the
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Company (whether voluntary or involuntary) or in bankruptcy, insolvency,
receivership or similar proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full (or duly provided for) in cash
before any payment is made on account of the principal of, premium, if any, or
interest on the Subordinated Debt Securities (except payments made from monies
previously deposited with the Trustee under certain circumstances). In the event
of the acceleration of the Subordinated Debt Securities because of an Event of
Default, no payment or distribution shall be made in respect of the principal
of, premium, if any, or interest on the Subordinated Debt Securities until all
Senior Indebtedness has been paid in full in cash or such acceleration is
rescinded in accordance with the terms of the Indenture. 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 1502)
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.
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 such Person 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
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the whole of the assets of such Person or to only a portion thereof) (other than
any trade accounts payable or other accrued current expense 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, 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 any 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.
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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.
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
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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 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,
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<PAGE> 17
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 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
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<PAGE> 18
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 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).
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<PAGE> 19
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 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).
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<PAGE> 20
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) 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).
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).
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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.
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<PAGE> 22
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, 1998,
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 incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
The combined financial statements of Lacerte Software Corporation and
Lacerte Educational Services Corporation incorporated herein by reference to the
audited historical financial statements as of March 31, 1997 and 1998 and for
each of the three years in the period ended March 31, 1998 included as Exhibit
99.02 to Intuit Inc.'s Form 8-K dated May 18, 1998 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given upon the authority of said firm as experts in auditing and accounting.
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<PAGE> 23
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......... $147,500
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............................................... 20,000
--------
Total............................................. $725,000
========
</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 and
its subsidiaries' 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
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<PAGE> 24
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 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 with a per claim and annual
aggregate coverage limit of $25,000,000.
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.
II-2
<PAGE> 25
ITEM 16. EXHIBITS
The following exhibits are filed herewith or incorporated by reference
herein:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
------- -------------
<C> <S>
1.01 Form(s) of Underwriting Agreement(s).*
4.01 Form of Senior Indenture.(1)
4.02 Form of Subordinated Indenture.(1)
4.03 Form of Senior Debt Security (included in Exhibit 4.1).(1)
4.04 Form of Subordinated Debt Security (included in Exhibit
4.02). (1)
4.05 Certificate of Incorporation of Intuit dated February 1,
1993.(2)
4.06 Certificate of Amendment to Intuit's Certificate of
Incorporation dated December 14, 1993.(3)
4.07 Certificate of Amendment to Intuit's Certificate of
Incorporation dated January 18, 1996.(4)
4.08 Certificate of Designations of Series B Junior Participating
Preferred Stock dated May 1, 1998.(5)
4.09 Amended and Restated Rights Agreement, dated October 5,
1998.(6)
4.10 Certificate of Retirement of Series A Preferred Stock dated
September 16, 1998.(6)
4.11 Bylaws of Intuit, as amended and restated effective April
29, 1998.(7)
4.12 Form of Specimen Certificate for Intuit's Common Stock.(6)
4.13 Form of Right Certificate for Series B Junior Participating
Preferred Stock (included in Exhibit 4.09).(6)
+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 PricewaterhouseCoopers LLP, independent auditors.
+23.03 Consent of Fenwick & West LLP (included in Exhibit 5.01).
+24.01 Power of Attorney of certain directors and officers of the
registrant (see page II-5 of initial filing of this Form
S-3).
24.02 Power of Attorney of L. John Doerr and Burton J. McMurtry.
+25.1 Form T-1 Statement of Eligibility and Qualification of
Trustee for Senior Indenture and 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.
+ Previously filed.
(1) Incorporated by reference to the exhibit with the same number in the
Company's Registration Statement on Form S-3 (File No. 333-50417) which was
declared effective April 30, 1998.
(2) Filed as an exhibit to Intuit's Registration Statement on Form S-1, filed
with the Commission on February 3, 1993, as amended (File No. 33-57884) and
incorporated by reference.
(3) Filed as an exhibit to Intuit's Form 10-K (File No. 0-21180) as originally
filed with the Commission on October 31, 1994, as amended, and incorporated
by reference.
(4) Filed as an exhibit to Intuit's Form 10-Q (File No. 0-21180) for the quarter
ended January 31, 1996, filed with the Commission on March 15, 1996 and
incorporated by reference.
(5) Filed as an exhibit to Intuit's Registration Statement on Form 8-A (File No.
0-21180) filed with the Commission on May 5, 1998 and incorporated by
reference.
(6) Filed as an exhibit to Intuit's Form 10-K (File No. 0-21180) for the fiscal
year ended July 31, 1998, filed with the Commission on October 6, 1998 and
incorporated by reference.
(7) Filed as an exhibit to Intuit's Form 8-K (File No. 0-21180) filed with the
Commission on May 2, 1998 and incorporated by reference.
II-3
<PAGE> 26
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 if the
information required to be included in a post-effective amendment by such
clauses is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 (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 it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE> 27
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE> 28
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 Amendment to
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Mountain View, State of
California, on this 6th day of October, 1998.
INTUIT INC.
By: /s/ GREG J. SANTORA
------------------------------------
Greg J. Santora
Vice President and Chief Financial
Officer
Pursuant to the requirements of the Securities Act, this Amendment to
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* President, Chief Executive October 6, 1998
- ----------------------------------------------------- Officer and Director
William H. Harris, Jr.
PRINCIPAL FINANCIAL OFFICER AND PRINCIPAL
ACCOUNTING OFFICER:
/s/ GREG J. SANTORA Vice President and Chief October 6, 1998
- ----------------------------------------------------- Financial Officer
Greg J. Santora
ADDITIONAL DIRECTORS:
* Chairman of the Board of October 6, 1998
- ----------------------------------------------------- Directors
William V. Campbell
* Chairman of the Executive October 6, 1998
- ----------------------------------------------------- Committee of the Board of
Scott D. Cook Directors
* Director October 6, 1998
- -----------------------------------------------------
Christopher W. Brody
* Director October 6, 1998
- -----------------------------------------------------
L. John Doerr
* Director October 6, 1998
- -----------------------------------------------------
Michael R. Hallman
* Director October 6, 1998
- -----------------------------------------------------
Burton J. McMurtry
*By: /s/ GREG J. SANTORA
----------------------------------------
Greg J. Santora
Attorney in-Fact
</TABLE>
II-6
<PAGE> 29
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
- ------- -------------
<C> <S>
1.01 Form(s) of Underwriting Agreement(s).*
4.01 Form of Senior Indenture.(1)
4.02 Form of Subordinated Indenture.(1)
4.03 Form of Senior Debt Security (included in Exhibit 4.1).(1)
4.04 Form of Subordinated Debt Security (included in Exhibit
4.02).(1)
4.05 Certificate of Incorporation of Intuit dated February 1,
1993.(2)
4.06 Certificate of Amendment to Intuit's Certificate of
Incorporation dated
December 14, 1993.(3)
4.07 Certificate of Amendment to Intuit's Certificate of
Incorporation dated
January 18, 1996.(4)
4.08 Certificate of Designations of Series B Junior Participating
Preferred Stock dated
May 1, 1998.(5)
4.09 Amended and Restated Rights Agreement, dated October 5,
1998.(6)
4.10 Certificate of Retirement of Series A Preferred Stock dated
September 16, 1998.(6)
4.11 Bylaws of Intuit, as amended and restated effective April
29, 1998.(7)
4.12 Form of Specimen Certificate for Intuit's Common Stock.(6)
4.13 Form of Right Certificate for Series B Junior Participating
Preferred Stock (included in Exhibit 4.09).(6)
+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 PricewaterhouseCoopers LLP, independent auditors.
+23.03 Consent of Fenwick & West LLP (included in Exhibit 5.01).
+24.01 Power of Attorney of certain directors and officers of the
registrant (see page II-5 of initial filing of this Form
S-3).
24.02 Power of Attorney of L. John Doerr and Burton J. McMurtry.
+25.1 Form T-1 Statement of Eligibility and Qualification of
Trustee for Senior Indenture and 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.
+ Previously filed.
(1) Incorporated by reference to the exhibit with the same number in the
Company's Registration Statement on Form S-3 (File No. 333-50417) which was
declared effective April 30, 1998.
(2) Filed as an exhibit to Intuit's Registration Statement on Form S-1, filed
with the Commission on February 3, 1993, as amended (File No. 33-57884) and
incorporated by reference.
(3) Filed as an exhibit to Intuit's Form 10-K (File No. 0-21180) as originally
filed with the Commission on October 31, 1994, as amended, and incorporated
by reference.
(4) Filed as an exhibit to Intuit's Form 10-Q (File No. 0-21180) for the quarter
ended January 31, 1996, filed with the Commission on March 15, 1996 and
incorporated by reference.
(5) Filed as an exhibit to Intuit's Registration Statement on Form 8-A (File No.
0-21180) filed with the Commission on May 5, 1998 and incorporated by
reference.
(6) Filed as an exhibit to Intuit's Form 10-K (File No. 0-21180) for the fiscal
year ended July 31, 1998, filed with the Commission on October 6, 1998 and
incorporated by reference.
(7) Filed as an exhibit to Intuit's Form 8-K (File No. 0-21180) filed with the
Commission on May 2, 1998 and incorporated by reference.
<PAGE> 1
EXHIBIT 12.01
INTUIT INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
IN THOUSANDS, EXCEPT RATIOS
<TABLE>
<CAPTION>
TEN
YEAR MONTHS
ENDED ENDED YEAR ENDED JULY 31,
SEPT. 30, JULY 31, -----------------------------------------------------
1993 1994 1995 1996 1997 1998
--------- --------- --------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) from continuing operations
before income taxes $ 14,770 $(181,493) $ (20,000) $ 1,870 $ 9,809 $(19,823)
Fixed charges 1,056 934 3,278 4,828 5,395 5,315
--------- --------- --------- --------- --------- --------
Total $ 15,826 $(180,559) $ (16,722) $ 6,698 $ 15,204 $(14,508)
========= ========= ========= ========= ========= ========
Fixed Charges:
Interest expense $ 79 $ 8 $ 232 $ 305 $ 652 $ 432
Portion of rent deemed to be interest 977 926 3,046 4,523 4,743 4,883
--------- --------- --------- --------- --------- --------
Total $ 1,056 $ 934 $ 3,278 $ 4,828 $ 5,395 $ 5,315
========= ========= ========= ========= ========= ========
Ratio of earnings to fixed charges 14.99 (1) (2) (3) 2.82 (4)
========= ========= ========= ========= ========= ========
</TABLE>
(1) Earnings were inadequate to cover fixed charges by $181,493.
(2) Earnings were inadequate to cover fixed charges by $20,000.
(3) Earnings were inadequate to cover fixed charges by $1,870.
(4) Earnings were inadequate to cover fixed charges by $19,823.
<PAGE> 1
EXHIBIT 23.01
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference of our firm under the caption "Experts" in Amendment
No. 1 to the Registration Statement (Form S-3 333-63739) and the incorporation
by reference therein of our report dated August 19, 1998, with respect to the
consolidated financial statements and schedule of Intuit Inc. included in its
Annual Report (Form 10-K) for the year ended July 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
October 6, 1998
<PAGE> 1
EXHIBIT 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 (No. 333-63739) of
Intuit Inc. of our report dated May 15, 1998 relating to the combined financial
statements of Lacerte Software Corporation and Lacerte Education Services
Corporation, which appears in the Current Report on Form 8-K of Intuit Inc.
dated May 18, 1998. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
- ------------------------------
PricewaterhouseCoopers LLP
Dallas, Texas
October 6, 1998
<PAGE> 1
EXHIBIT 24.02
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:
President, Chief Executive Officer and ____________, 1998
- -------------------------------- Director
William H. Harris, Jr.
PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER:
Vice President and Chief Financial Officer ____________, 1998
- --------------------------------
Greg J. Santora
ADDITIONAL DIRECTORS:
Chairman of the Board of Directors ____________, 1998
- --------------------------------
William V. Campbell
Chairman of the Executive Committee ____________, 1998
- -------------------------------- of the Board of Directors
Scott D. Cook
Director ____________, 1998
- --------------------------------
Christopher W. Brody
/s/ L. John Doerr Director September 18, 1998
- --------------------------------
L. John Doerr
Director ____________, 1998
- --------------------------------
Michael R. Hallman
/s/ Burton J. McMurtry Director September 18, 1998
- --------------------------------
Burton J. McMurtry
</TABLE>
