sv3asr
As filed with the Securities and
Exchange Commission on March 3, 2011
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
3D SYSTEMS CORPORATION
(Exact name of
registrant as specified in its charter)
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Delaware
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95-4431352
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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333 Three D Systems Circle
Rock Hill, South Carolina 29730
(803) 326-3900
(Address, Including
Zip Code, and Telephone Number, Including Area Code, of
Registrants Principal Executive Offices)
Robert M. Grace, Jr.
Vice President, General Counsel and Secretary
3D Systems Corporation
333 Three D Systems Circle
Rock Hill, South Carolina 29730
(803) 326-3900
(Name, Address,
Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
Please send copies of all
notices, orders and communications to:
Andrew A. Gerber, Esq.
Hunton & Williams LLP
101 South Tryon Street, Suite 3500
Charlotte, N.C. 28280
704-378-4700
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box: o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration number of the
earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated
filer o
(Do not check if a smaller reporting company)
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Smaller reporting
Company o
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CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Aggregate Offering
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Aggregate
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Registration
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Securities to be Registered
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Registered (1)
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Price per Share (1)
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Offering Price (1)(2)
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Fee (2)(3)
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Common Stock, $0.001 par value (4)
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Preferred Stock, $0.001 par value
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Debt Securities (5)
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Warrants
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Units (6)
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Total
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$175,000,000
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(2)(3)
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(1)
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There is being registered hereunder
an indeterminate principal amount of debt securities and an
indeterminate number of shares of common stock and preferred
stock, warrants and units as may from time to time be issued in
unspecified numbers and at indeterminate prices, and as may be
issuable upon conversion, redemption, exchange, exercise or
settlement of any securities registered hereunder, for which
separate consideration may or may not be received. Pursuant to
Rule 416(a) under the Securities Act of 1933, as amended
(the Securities Act), there is also being registered
such indeterminate number of shares of common stock as may be
issued from time to time with respect to shares being registered
hereunder as a result of stock splits, stock dividends or
similar transactions.
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(2)
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The proposed maximum aggregate
offering price has been estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(o)
under the Securities Act. The aggregate public offering price of
the securities registered hereunder will not exceed $175,000,000.
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(3)
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Prior to the filing of this
registration statement, $75,000,000 aggregate principal amount
of securities remained registered and unsold pursuant to
Registration Statement No.
333-165053,
which was initially filed by the Registrant on February 24,
2010, and amended on April 8, 2010. In reliance on
Rules 456(b) and 457(r) under the Securities Act, the
Registrant is deferring payment of all of the registration fee,
except for $5,348 that may be offset pursuant to
Rule 457(p) for fees paid with respect to the $75,000,000
aggregate initial offering price of securities that were
previously registered pursuant to Registration Statement
No. 333-165053
and not sold thereunder. In connection with the securities
registered hereunder, except as specified in the previous
sentence, the Registrant will pay pay-as-you-go
registration fees in accordance with Rule 456(b).
Upon effectiveness of this Registration Statement, Registration
Statement
No. 333-165053
is hereby withdrawn.
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(4)
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Securities registered under this
registration statement also include the preferred stock purchase
rights attached to and traded with the shares of common stock
being registered hereunder. The value attributable to the
preferred stock purchase rights, if any, is reflected in the
value attributable to the common stock. Includes shares of
common stock that may be sold from time to time by selling
stockholders to be identified at the time of sale.
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(5)
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If any debt securities are issued
at an original issue discount, then the offering price shall be
in such greater principal amount as may be sold for an aggregate
initial offering price of up to the proposed maximum aggregate
offering price.
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(6)
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Each unit will be issued under a
unit agreement, indenture, or other agreement and will represent
an interest in one or more shares of common stock, shares of
preferred stock, debt securities or warrants in any combination.
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PROSPECTUS
3D SYSTEMS
CORPORATION
$175,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may offer and sell, from time to time, our common stock,
preferred stock, debt securities, warrants to purchase debt or
equity securities or units of such securities at prices and on
terms that will be determined at the time of any such offering.
Any selling stockholder identified in a prospectus supplement
may offer and sell, from time to time, our common stock at
prices and on terms that will be determined at the time of any
such offering.
The securities offered pursuant to this prospectus may be sold
at prevailing market prices or at prices different than
prevailing market prices. We or any selling stockholder may
offer and sell these securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on
a delayed or continuous basis. The prospectus supplement for
each offering will provide the specific terms of the plan of
distribution for that offering.
Each time our securities are offered under this prospectus, we
will provide a prospectus supplement containing more specific
information about the particular offering. The prospectus
supplements may also add, update or change information contained
in this prospectus. You should carefully read this prospectus
and any accompanying prospectus supplement, together with the
documents we incorporate by reference, before you invest in our
securities. This prospectus may not be used to sell securities
unless accompanied by a prospectus supplement or free writing
prospectus.
Our common stock is listed on The Nasdaq Global Market under the
ticker symbol TDSC. We have not yet determined
whether any of the other securities that may be offered by this
prospectus will be listed on any exchange, inter-dealer
quotation system or
over-the-counter
system. If we decide to seek a listing for any of those
securities, that will be disclosed in a prospectus supplement.
Investing in our securities involves substantial risks. See
Risk Factors on page 6 herein and in our most
recent Annual Report on
Form 10-K,
which is incorporated by reference herein, updated and
supplemented by our periodic reports and other information filed
by us with the Securities and Exchange Commission and
incorporated by reference herein. The prospectus supplement
applicable to each type or series of securities we or any
selling stockholder offer may contain a discussion of additional
risks applicable to an investment in us and the particular type
of securities we are offering under that prospectus
supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is March 3, 2011.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement on
Form S-3
that we filed with the Securities and Exchange Commission (the
Commission) using a shelf registration
process. Under this shelf registration process, we or any
selling stockholder to be named in a prospectus supplement may,
from time to time, offer
and/or sell
the securities referenced in this prospectus in one or more
offerings or resales. Each time securities are offered, we will
provide a prospectus supplement and attach it to this
prospectus. We may also provide you a free writing prospectus at
the time our securities are offered. The prospectus supplement
and/or free
writing prospectus will contain more specific information about
the offering. The prospectus supplement and free writing
prospectus may also add, update or change information contained
in this prospectus. Any statement that we make in this
prospectus will be modified or superseded by any inconsistent
statement made by us in a prospectus supplement or free writing
prospectus. You should read both this prospectus and any
accompanying prospectus supplement together with the additional
information described under the heading Incorporation of
Certain Documents by Reference.
We have filed or incorporated by reference exhibits to the
registration statement of which this prospectus forms a part.
You should read the exhibits carefully for provisions that may
be important to you. Any statement made in this prospectus
concerning the contents of any contract, agreement or other
document is only a summary of the actual document. You may
obtain a copy of any document summarized in this prospectus at
no cost by writing to or telephoning us at the address and
telephone number given below. Each statement regarding a
contract, agreement or other document is qualified in its
entirety by reference to the actual document. See Where
You Can Find More Information below.
You should rely only on the information contained in this
prospectus, any applicable prospectus supplement, any free
writing prospectus and the documents incorporated by reference
herein or therein. We have not authorized anyone to provide you
with information different from that contained in this
prospectus or any prospectus supplement, free writing prospectus
or incorporated by reference herein. This prospectus may be used
only where it is legal to sell these securities. This prospectus
is not an offer to sell, or a solicitation of an offer to buy,
in any state where the offer or sale is prohibited. The
information in this prospectus, any prospectus supplement or any
document incorporated herein or therein by reference is accurate
as of the date contained on the cover of such documents. Neither
the delivery of this prospectus or any prospectus supplement,
nor any sale made under this prospectus or any prospectus
supplement will, under any circumstances, imply that the
information in this prospectus or any prospectus supplement is
correct as of any date after the date of this prospectus or any
such prospectus supplement or free writing prospectus. Our
business, financial condition, results of operations and
prospects may have changed since that date.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to incorporate by reference
into this prospectus the information we have filed with the
Commission. This means that we can disclose important
information by referring you to those documents. Our Commission
filing number is
001-34220.
All documents that we file with the Commission on or after the
date of this prospectus pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the Exchange Act), prior to the termination of this
offering, will be deemed to be incorporated by reference into
this prospectus and to be a part hereof from the date of filing
of such documents. We are not, however, incorporating by
reference any documents or portions thereof, whether
specifically listed below or filed in the future, that are not
deemed filed with the Commission under its rules and
regulations, including information furnished pursuant to
Item 2.02 or 7.01 of
Form 8-K.
Any statement contained in a document incorporated or deemed to
be incorporated by reference in this prospectus shall be deemed
to be modified or superseded for purposes of this prospectus to
the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
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We incorporate by reference the following documents that we have
filed with the Commission, and any filings that we will make
with the Commission in the future, under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, until this offering is
terminated:
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Our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2010;
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Our Current Report on
Form 8-K
filed on January 5, February 22 (solely with respect to
Item 8.01), 2011 and March 3, 2011;
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Our Definitive Proxy Statement on Schedule 14A filed on
March 31, 2010; and
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Our Registration Statement on
Form 8-B,
filed with the Commission on August 13, 1993, as amended by
Form 8-B/A,
filed with the Commission on February 4, 1994, describing
our common stock, and any amendment or report filed with the
Commission for the purpose of updating the description.
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Copies of any documents incorporated by reference in this
prospectus are available free of charge by writing 3D Systems
Corporation, 333 Three D Systems Circle, Rock Hill, South
Carolina 29730, Attention: Investor Relations Coordinator, or by
telephoning us at
(803) 326-3900.
WHERE YOU
CAN FIND MORE INFORMATION
We file quarterly, annual and other periodic reports, proxy
statements and other information with the Commission. Copies of
our reports, proxy statements and other information may be
inspected and copied at the Commissions Public Reference
Room at 100 F Street, N.E., Washington, D.C.
20549. You may obtain information on the operation of the Public
Reference Room by calling the Commission at
1-800-SEC-0330.
The Commission maintains an internet site that contains reports,
proxy and information statements and other information regarding
3D Systems and other issuers that file electronically with the
Commission. The address of the Commission internet site is
www.sec.gov. This information is also available on our
website at www.3DSystems.com. Information contained on
these websites is not incorporated by reference into and does
not constitute a part of this prospectus.
We have filed a registration statement on
Form S-3
under the Securities Act of 1933, as amended (the
Securities Act), with the Commission with respect to
the securities to be sold hereunder. This prospectus has been
filed as part of that registration statement. This prospectus
does not contain all of the information set forth in the
registration statement because certain parts of the registration
statement are omitted in accordance with the rules and
regulations of the Commission. The registration statement is
available for inspection and copying as set forth above.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements made in this prospectus and any accompanying
prospectus supplement that are not statements of historical or
current facts are forward-looking statements within the meaning
of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements may involve known and unknown risks,
uncertainties and other factors that may cause our actual
results, performance or achievements to be materially different
from historical results or from any future results expressed or
implied by such forward-looking statements. Certain of these
risks and uncertainties are discussed under the heading
Risk Factors below and in our other Commission
filings. All forward looking statements should be read with
caution.
In addition to statements that explicitly describe such risks
and uncertainties, you are urged to consider statements in
future or conditional tenses or that include terms such as
believes, belief, expects,
intends, anticipates or
plans to be uncertain and forward-looking.
Forward-looking statements may include statements as to our
beliefs and expectations as to future events and trends
affecting our business. Forward-looking statements are based
upon our current expectations concerning future events and
trends and are necessarily subject to uncertainties, many of
which are outside of our control. The factors incorporated by
reference under the heading Risk Factors below and
those described in our other Commission reports, as
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well as other factors, could cause actual results to differ
materially from those reflected or predicted in forward-looking
statements.
If one or more of these or other risks or uncertainties
materialize, or if our underlying assumptions prove to be
incorrect, actual results may vary materially from those
reflected in or suggested by forward-looking statements. Any
forward-looking statement you read in this prospectus and any
accompanying prospectus supplement reflects our views with
respect to future events and is subject to these and other
risks, uncertainties and assumptions relating to our operations,
results of operations, growth strategy and liquidity. You should
specifically consider the factors identified or referred to in
this prospectus, any accompanying prospectus supplement and our
other Commission reports, including our Annual Report on
Form 10-K
for the year ended December 31, 2010, which could cause
actual results to differ from those referred to in
forward-looking statements.
Any forward-looking statements are based on our beliefs and
assumptions, using information currently available to us. Except
as required by law, we undertake no obligation to revise or
publicly release the results of any revision to any
forward-looking statements. You are advised, however, to consult
any additional disclosures we make in our periodic reports to
the Commission. All subsequent written and oral forward-looking
statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by the cautionary
statements contained in this prospectus and any accompanying
prospectus supplement.
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OUR
COMPANY
This summary description of us and our business highlights
selected information about us contained elsewhere in this
prospectus or incorporated herein by reference. This summary may
not contain all of the information about us that you should
consider before buying securities in this offering. You should
carefully read this entire prospectus and any applicable
prospectus supplement, including each of the documents
incorporated herein by reference, before making an investment
decision. As used herein, we, us, and
our refer to 3D Systems Corporation and its
subsidiaries.
We are a holding company that operates through subsidiaries in
the United States, Europe and the
Asia-Pacific
region. We design, develop, manufacture, market and service a
comprehensive portfolio of 3D printers and related
products, print materials and services. We are a leading global
provider of
3D content-to-print
solutions including personal, professional and production 3D
printers, print materials and custom parts services. Our
expertly integrated rapid prototyping and manufacturing
solutions reduce the time and cost of designing new products by
printing real parts directly from digital data. These solutions
are used to design, communicate, prototype and produce
functional end-use parts.
Customers use our proprietary printers and print services to
produce physical objects from digital data that was created
using commonly available computer-aided design software, often
referred to as CAD software, or other digital-capture
devices such as scanners. The ability to print functional parts
from digital data enables our customers to harness complete
freedom of geometrical creation to design and build detailed
prototypes or production parts quickly and efficiently without a
significant investment in expensive tooling, greatly reducing
the time and cost required to produce prototypes or to customize
production parts.
Our extensive portfolio of 3D printers is based on six unique
print engines that employ proprietary, additive layer printing
processes designed to meet our customers most demanding
design, prototyping, testing, tooling and production
requirements. Our principal print engines include
stereolithography or
SLA®
printers, selective laser sintering or
SLS®
printers, multi-jet modeling printers, film transfer imaging
printers, selective laser melting printers and plastic jet
printers. We believe that our 3D printer solutions and services
enable our customers to develop and manufacture better quality,
higher functionality, new products faster and more economically
than with traditional methods.
Our product development efforts are focused on providing our
customers with an expanded portfolio of 3D
content-to-print
solutions targeting their entire
design-to-manufacturing
requirements from rapid prototyping services to
on-site
office, model-shop and production floor printers. We are
focusing on developing a comprehensive menu of affordable to own
and operate 3D printing solutions to address applications in the
education, transportation, recreation, healthcare and consumer
products marketplaces, which we believe represent significant
growth opportunities for our business.
We continue to develop new printers, print materials and custom
parts services and have expanded our technology platform through
internal development efforts and through acquisitions. Our 3D
content-to-print
solutions are used by our customers to replace, displace or
complement traditional
design-to-manufacturing
solutions including 2D plotters and wide-format printers, CNC
machining centers and a wide variety of other traditional
machine-tool and molding alternatives.
In rapid manufacturing applications, our printers are used to
manufacture end-use parts that have the appearance and
performance of high-quality injection-molded parts. Customers
who adopt our rapid manufacturing solutions avoid the
significant costs of complex
set-ups and
changeovers and eliminate the costs and lead times associated
with conventional tooling methods or labor intensive
craftsmanship. Rapid manufacturing enables our customers to
produce optimized designs because they can design for function,
unconstrained by normal
design-for-manufacture
considerations.
In communication and design applications, our printers are used
to produce three-dimensional objects, primarily for visualizing
and communicating concepts, various design applications and
other applications, including supply chain management and
functional models.
In rapid prototyping applications, our printers are used to
quickly and efficiently generate product-concept models,
functional prototypes to test form, fit and function, master
patterns and expendable patterns for urethane and investment
casting that are often used for evaluating product designs and
short-run production.
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We provide expertly integrated solutions consisting of printers,
print materials, software tools and a variety of related
customer services. Our extensive solutions portfolio enables us
to offer our customers a cost effective way to transform the
manner in which they design, develop and manufacture their
products.
We are incorporated under the laws of the State of Delaware. Our
executive office is located at 333 Three D Systems Circle, Rock
Hill, South Carolina 29730. Our telephone number is
(803) 326-3900.
Our website is www.3Dsystems.com. Information contained
in our website is not incorporated by reference into and does
not constitute part of this prospectus.
RISK
FACTORS
Investing in our securities involves risks that could affect us
and our business as well as our industry generally. Please see
the risk factors discussed herein and in our most recently filed
Annual Report on
Form 10-K
which is incorporated by reference into this document, as such
may be updated and supplemented by our Commission filings. Much
of the business information as well as the financial and
operational data contained in our risk factors is updated in our
periodic reports and current reports, which are also
incorporated by reference into this document. Although we have
tried to discuss key factors, please be aware that other risks
may prove to be important in the future. New risks may emerge at
any time, and we cannot predict such risks or estimate the
extent to which they may affect our financial condition or
performance. Before purchasing any of our securities, you should
carefully consider the risks discussed herein and in our Annual
Report on
Form 10-K
for the year ended December 31, 2010, and the other
information in this prospectus supplement and the accompanying
prospectus, as well as any future filings that are incorporated
by reference herein and any related free writing prospectus.
Risks related to any specific securities we offer will be
described in the applicable prospectus supplement relating to
those securities. Each of the risks described could result in a
material decrease in the value of our securities and your
investment in them.
USE OF
PROCEEDS
Unless we state otherwise in the applicable prospectus
supplement accompanying this prospectus, we expect to use the
net proceeds from our sale of offered securities:
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to finance future acquisitions of other entities or their
assets; and
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for working capital and general corporate purposes, which may
include the repayment of any future indebtedness.
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In the event that any net proceeds are not immediately applied,
we may temporarily hold them as cash, deposit them in banks, or
invest them in cash equivalents or securities that our
investment policies permit us to invest in from time to time. We
will not receive any proceeds from any sale of shares of our
common stock by any selling stockholder.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table contains our consolidated ratio of earnings
to fixed charges for the periods indicated. You should read
these ratios in connection with our consolidated financial
statements, including the notes to those statements,
incorporated by reference in this prospectus.
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For the Year Ended December 31,
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2010
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2009
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2008
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2007
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2006
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Ratio of earnings to fixed charges
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16.8x
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2.6x
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Fixed charges exceeded earnings for the years ended
December 31, 2008, 2007 and 2006. The amount of the
deficiency, or the fixed charge amounts in excess of earnings
were approximately $5.9 million, $6.2 million and
$27.1 million in 2008, 2007 and 2006, respectively. |
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We have computed the ratio of earnings to fixed charges by
dividing earnings by fixed charges. For the purposes of
computing these ratios, earnings have been
calculated by adding fixed charges to income (loss) before
income taxes less non controlling interest and fixed
charges as the sum of interest on debt and capitalized
leases, amortization of debt discount and expense, and an
imputed interest factor included in rentals.
Currently, we do not have any shares of preferred stock
outstanding.
DESCRIPTION
OF THE SECURITIES WE MAY OFFER
This prospectus contains summary descriptions of our common
stock (including their corresponding preferred stock purchase
rights), preferred stock, debt securities, warrants to purchase
debt or equity securities and units that we may offer from time
to time. As further described in this prospectus, these summary
descriptions are not meant to be complete descriptions of each
security. The particular terms of any security will be described
in the accompanying prospectus supplement and other offering
material. The accompanying prospectus supplement may add, update
or change the terms and conditions of the securities as
described in this prospectus
DESCRIPTION
OF CAPITAL STOCK
The following description of our capital stock is based upon our
Certificate of Incorporation, our
By-Laws and
applicable provisions of law, in each case as currently in
effect. The following description is only a summary of the
material provisions of our capital stock set forth in our
Certificate of Incorporation and our By-Laws, each as in effect
as of the date of this prospectus, does not purport to be
complete, and is qualified in its entirety by reference to such
documents, the information regarding our capital stock
incorporated by reference herein from our Commission filings and
the applicable provisions of the Delaware General Corporation
Law. The documents governing our capital stock have been filed
as exhibits to the registration statement of which this
prospectus forms a part.
The particular terms of any series of preferred stock we offer
will be described in the related prospectus supplement. You
should read that description, together with the more detailed
provisions of our Certificate of Incorporation and the
certificate of designations relating to the particular series of
preferred stock, for provisions that may be important to you.
The certificate of designations relating to each particular
series of preferred stock will be filed as an exhibit to a
document incorporated by reference into the registration
statement of which this prospectus forms a part.
General
Our authorized capital stock consists of 60,000,000 shares
of common stock, par value $0.001 per share, and
5,000,000 shares of preferred stock, par value $0.001 per
share.
As of December 31, 2010, we had the following equity
securities outstanding:
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23,355,527 shares of common stock;
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no shares of preferred stock; and
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777,382 options to purchase a like number of shares of common
stock.
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The following description of our capital stock does not purport
to be complete and is subject to and qualified by our
Certificate of Incorporation, our Amended and Restated By-Laws,
and the applicable provisions of the Delaware General
Corporation Law, each as in effect as of the date of this
prospectus.
Common
Stock
Our common stock is traded on The Nasdaq Global Market under the
symbol TDSC. Holders of our common stock are
entitled to one vote for each share on all matters voted upon by
our stockholders, including
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the election of directors. Holders of our common stock do not
have cumulative voting rights or preemptive rights to purchase
additional shares of our common stock.
Subject to the rights of holders of any then outstanding shares
of our preferred stock, our common stockholders are entitled to
receive such dividends as may be declared from time to time by
our Board of Directors from funds legally available therefor. We
do not currently pay cash dividends on our common stock, and we
currently intend to retain any future earnings for use in our
business. Any future determination as to the declaration of
dividends on our common stock will be made at the discretion of
the Board of Directors and will depend on our earnings,
operating and financial condition, capital requirements and
other factors deemed relevant by the Board of Directors,
including the applicable requirements of the Delaware General
Corporation Law, which provides that dividends are payable only
out of surplus or current net profits. The payment of dividends
on our common stock may be restricted by the provisions of
credit agreements or other financing documents that we may enter
into or the terms of securities that we may issue from time to
time.
Holders of our common stock are entitled to share ratably in our
net assets upon our dissolution, liquidation or
winding-up,
after payment or provision for all liabilities and any pari
passu or preferential liquidation rights of our preferred stock
then outstanding.
The shares of our common stock are not subject to any redemption
provisions and are not convertible into any other shares of our
capital stock. All outstanding shares of our common stock are
fully paid and nonassessable. The rights, preferences and
privileges of holders of our common stock are subject to, and
may be adversely affected by, those of the holders of preferred
stock, and will be subject to those of the holders of any shares
of our preferred stock that we may issue in the future,
including our Series A Preferred Stock discussed below.
Preferred
Stock
The Board of Directors may, from time to time, authorize the
issuance of one or more classes or series of preferred stock
without stockholder approval up to the maximum of
5,000,000 shares of preferred stock that are currently
authorized. Subject to the provisions of our Certificate of
Incorporation, as amended, and limitations prescribed by law,
the Board of Directors is authorized to adopt resolutions,
without any action or vote by our stockholders, that set for the
terms and rights of any future series of preferred stock. Those
terms and rights may include:
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the designation of the series;
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the number of shares of the series, which number the Board of
Directors may thereafter, except where otherwise provided in the
applicable certificate of designation, increase or decrease, but
not below the number of shares thereof then outstanding;
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whether dividends, if any, will be cumulative or noncumulative,
and, in the case of shares of any series having cumulative
dividend rights, the date or dates or method of determining the
date or dates from which dividends on the shares of such series
shall be cumulative;
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the rate of any dividends or method of determining such
dividends payable to the holders of the shares of such series,
any conditions upon which such dividends will be paid and the
date or dates or the method for determining the date or dates
upon which such dividends will be payable;
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the redemption rights and prices, if any, for shares of the
series;
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the terms and amounts of any sinking fund provided for the
purchase or redemption of shares of the series;
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the amounts payable on and the preferences, if any, of shares of
the series in the event of our voluntary or involuntary
liquidation, dissolution, or winding up;
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whether the shares of the series will be convertible or
exchangeable into shares of any other class or series, or any
other security, of us or any other entity, and, if so, the
specification of such other class or series or such other
security, the conversion or exchange price or prices or rate or
rates, any adjustments
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thereof, the date or dates as of which such shares will be
convertible or exchangeable and all other terms and conditions
upon which such conversion or exchange may be made;
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restrictions on the issuance of shares of the same series or of
any other class or series;
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the voting rights, if any, of the holders of the shares of the
series; and
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any other relative rights, preferences, and limitations of such
series.
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One of the effects of the Board of Directors right to
designate and issue preferred stock without stockholder approval
may be to enable the Board of Directors to discourage an attempt
to obtain control of the company by means of a tender offer,
proxy contest, merger or otherwise. Furthermore, the issuance of
preferred stock may adversely affect the rights of our common
stockholders by, among other things:
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restricting dividends on the common stock;
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diluting the voting power of the common stock;
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impairing the liquidation rights of the common stock; or
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delaying or preventing a change in control without further
action by the stockholders.
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Series A
Preferred Stock
Of the 5,000,000 shares of preferred stock authorized by
our Certificate of Incorporation, as amended, our Board of
Directors has designated 1,000,000 shares as Series A
Preferred Stock. In 2008, our Board of Directors approved the
creation of our Series A Preferred Stock and adopted a
stockholders rights plan pursuant to which it declared a
dividend of one Series A Preferred Stock purchase right for
each share of our common stock held by stockholders of record as
of the close of business on December 22, 2008. These
preferred share purchase rights also attach to any additional
shares of common stock issued after December 22, 2008.
These rights are not currently exercisable and trade with the
shares of our common stock. Under the rights plan, these rights
generally become exercisable only if a person or group acquires
or commences a tender or exchange offer for 15 percent or
more of our common stock. If the rights become exercisable, each
right will permit its holder to purchase one one-hundredth of a
share of Series A Preferred Stock for the exercise price of
$55.00 per right. The rights plan also contains customary
flip-in and flip-over provisions such
that if a person or group acquires beneficial ownership of
15 percent or more of our common stock, each right will
permit its holder, other than the acquiring person or group, to
purchase shares of our common stock for a price equal to the
quotient obtained by dividing $55.00 per right by one-half the
then current market price of our common stock. In addition, if,
after a person acquires such ownership, we are later acquired in
a merger or similar transaction, each right will permit its
holder, other than the acquiring person or group, to purchase
shares of the acquiring corporations stock for a price
equal to the quotient obtained by dividing $55.00 per right by
one-half of the then current market price of the acquiring
companys common stock, based on the market price of the
acquiring corporations stock prior to such merger. See
Rights Plan below.
Rights
Plan
As noted above, on December 9, 2008, our Board of Directors
adopted a stockholder rights plan, as set forth in the Rights
Agreement dated as of December 9, 2008, by and between us
and Computershare Trust Company, N.A., as rights agent (the
Rights Agreement). Pursuant to the terms of the
Rights Agreement, the Board declared a dividend of one
Series A Preferred Stock purchase right (a
Right) for each outstanding share of common stock.
The dividend was distributed on December 22, 2008 to the
stockholders of record on December 22, 2008.
Currently, the Rights trade with, and are inseparable from, our
common stock. The Rights will be issued in either certificated
or uncertificated form. In uncertificated form, they are
evidenced only by the balances indicated in the records of the
transfer agent for our common stock or, in the case of
certificated shares, by legends appearing on certificates issued
after December 22, 2008 that represent such shares of
common stock. Rights will also accompany any new shares of
common stock that we issue after December 22, 2008 until
the
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earlier of the Distribution Date, the Redemption Date or
the Final Expiration Date of the Rights Agreement, each as
described below.
Once the Rights become exercisable following a Distribution
Date, each Right will permit its holder to purchase from us one
one-hundredth of a share of our Series A Preferred Stock
(Series A Preferred Share) for $55.00. Prior to
the occurrence of a Distribution Date and the subsequent
exercise of the Rights by the holders of record thereof, the
Rights do not give their holders any rights with respect to
Series A Preferred Shares, common stock or otherwise.
The Rights are not exercisable until the earlier of the
following (the Distribution Date):
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10 days after the public announcement that a person or
group has become an Acquiring Person by obtaining
beneficial ownership of 15% or more of our outstanding common
stock; or
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10 business days (or a later date determined by the Board before
any person or group becomes an Acquiring Person) after a person
or group begins a tender or exchange offer which, if completed,
would result in that person or group becoming an Acquiring
Person.
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The Rights Agreement defines the term Acquiring
Person generally to mean any person who, together with all
affiliates and associates of such person, is the beneficial
owner of 15% or more of our outstanding common stock, including
common stock involved in certain derivative transactions
described in the Rights Agreement. However, that definition does
not generally include (i) 3D Systems Corporation, any
subsidiary of 3D Systems Corporation, any employee benefit or
stock ownership plan of 3D Systems Corporation or any such
subsidiary, or any entity holding common stock for or pursuant
to the terms of any such plan or (ii) any Exempt Person (as
defined below). Our Board has the authority under the Rights
Agreement to determine that a person who would otherwise be an
Acquiring Person has become an Acquiring Person inadvertently,
and to treat such person as not having become an Acquiring
Person if such person divests as promptly as practicable a
sufficient number of common stock so that such person would no
longer be an Acquiring Person.
As noted above, until a Distribution Date occurs, the balances
in the records of the transfer agent for our common stock or, in
the case of certificated shares, legends on common stock
certificates issued after December 22, 2008, will evidence
the Rights, and any transfer of shares of common stock, or in
the case of certificated shares, certificates for common stock,
will constitute a transfer of the associated Rights. After any
Distribution Date, the Rights will separate from the common
stock and will be recorded in the records of the rights agent,
either in certificated or uncertificated form. Only holders of
record of outstanding Rights after the occurrence of a
Distribution Date will be entitled to exercise any of the rights
of a holder of Rights. Any Rights held by an Acquiring Person or
any associate or affiliate of an Acquiring Person will be deemed
to be void and may not be exercised by any such person.
If a person or group becomes an Acquiring Person and a
Distribution Date occurs, all holders of record of Rights except
the Acquiring Person or any associate or affiliate thereof, may
purchase additional shares of our common stock for a price equal
to the quotient obtained by dividing $55.00 per right (subject
to adjustment as provided in the plan) by one-half of the then
current market price of our common stock. In addition, if, after
a person or group becomes an Acquiring Person, we are later
acquired in a merger or similar transaction after a Distribution
Date, all holders of record of Rights except the Acquiring
Person or any associate or affiliate thereof, may purchase
shares of the acquiring corporations stock for a price
equal to the quotient obtained by dividing $55.00 per right
(subject to adjustment as provided in the plan) by one-half of
the then current market price of the acquiring companys
stock, based on the price of the acquiring corporations
stock prior to such merger.
The Rights Agreement defines the term Exempt Person
generally to mean certain holders of our common stock who are
known to us as being the beneficial owners of more than 5% of
our common stock as long as they continue to hold such shares of
common stock as passive investment in our securities. At
December 31, 2010, these persons included St. Denis J.
Villere & Company, L.L.C., T. Rowe Price Associates,
Inc., The Clark Estates, Inc., G. Walter Loewenbaum, II,
Kevin S. Moore and any affiliate or associate of any of the
foregoing.
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Each Series A Preferred Share, if issued and outstanding:
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will not be redeemable.
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will entitle holders of record to cumulative cash dividends when
, as and if declared by the Board in an amount equal to the
amount, if any, of cash dividends paid on each share of common
stock, and additional quarterly cash dividends equal to $1.00
per whole Series A Preferred Share issued and outstanding
less the per share amount of all dividends, if any, declared on
common stock, if any, before giving effect to the application of
a formula number (as defined, which unless adjusted will equal
100) since the immediately preceding quarterly dividend
payment date.
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will entitle holders upon liquidation to receive an amount equal
to any accrued and unpaid dividends and distributions on
Series A Preferred Shares, whether or not declared, plus an
amount equal to the greater of (i) $0.01 per whole
Series A Preferred Share and (ii) an aggregate amount
per whole Series A Preferred Share equal to a formula
number (as defined, which unless adjusted will equal
100) then in effect times the aggregate amount to be
distributed to per share holders of common stock.
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will generally have the same voting power as one share of common
stock, will generally vote as a single class with our common
stock and will have the right to vote as a single class with
respect to such matters as are required by law.
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if shares of our common stock are exchanged via merger,
consolidation, or a similar transaction, will entitle holders to
a per share payment equal to the payment made on one share of
common stock.
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The Rights will expire on the earlier to occur of
(i) December 22, 2011, or such later date as approved
by the independent members of our Board of Directors (so long as
such determination is made prior to December 22, 2011), or
(ii) December 22, 2018 (the Final Expiration
Date). No payment will be made to the holder of any Right
upon its expiration.
The Board may redeem the Rights for $0.001 per Right at any time
prior to 10 days after such time that any person or group
becomes an Acquiring Person (the
Redemption Date). If the Board redeems any
Rights, it must redeem all of the Rights that are not deemed to
be void. Once the Rights are redeemed, the only right of the
holders of Rights will be to receive the redemption price of
$0.001 per Right. The redemption price will be adjusted if we
have a stock split or stock dividends of our common stock.
After a person or group becomes an Acquiring Person, but before
an Acquiring Person owns 50% or more of our outstanding common
stock, the Board may extinguish the Rights by exchanging one
share of common stock or an equivalent security for each Right,
other than Rights held by the Acquiring Person and its
associates and affiliates.
The Board may adjust the purchase price of the Series A
Preferred Shares to be paid upon the exercise of Rights, the
number of Series A Preferred Shares issuable and the number
of outstanding Rights from time to time to prevent dilution that
may occur from a stock dividend, a stock split or
reclassification of the issued and outstanding Series A
Preferred Shares or common stock or for certain other events set
forth in the Rights Agreement. No adjustments to the exercise
price of any Right amounting to less than 1% will be made, but
any such adjustment will be carried forward and applied with
respect to any subsequent anti-dilution adjustment.
The Rights Agreement may be amended by the Board in its sole
discretion until such time as any person becomes an Acquiring
Person. After such time the Board may, subject to certain
limitations set forth in the Rights Agreement, amend the Rights
Agreement only to cure any ambiguity, defect or inconsistency,
to shorten or lengthen any time period, or to make changes that
do not adversely affect the interests of Rights holders
(excluding the interests of an Acquiring Person or its
associates or affiliates).
In addition, the Board may, at any time prior to the time at
which any person becomes an Acquiring Person, amend the Rights
Agreement to lower the threshold at which a person becomes an
Acquiring Person to not less than 10%; provided,
however, that the Board may not cause a person or group
to become an
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Acquiring Person by lowering this threshold below the percentage
interest that such person or group already owns.
The Certificate of Designations of our Series A Preferred
Stock and the Rights Agreement are filed as exhibits to the
registration statement to which this prospectus forms a part and
are incorporated herein by reference. The foregoing description
of the terms of the Rights Agreement and the Rights is qualified
in its entirety by reference to the Certificate of Designations
and the Rights Agreement.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is
Computershare Investor Services, 250 Royall Street MS 3B,
Canton, Massachusetts 02021.
Limitation
of Director Liability
Our Certificate of Incorporation, as amended, contains a
provision that limits the liability of our directors as
permitted under Section 102(b)(7) of the Delaware General
Corporation Law. The provision eliminates a directors
personal liability to us or our stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (A) for any breach of the directors duty of
loyalty to us or our stockholders, (B) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (C) under
Section 174 of the Delaware General Corporation Law or
(D) for any transaction from which the director derives an
improper personal benefit.
DESCRIPTION
OF DEBT SECURITIES
General
The Debt Securities offered by this prospectus will be our
direct unsecured general obligations. This prospectus describes
certain general terms of the Debt Securities offered through
this prospectus. When we offer to sell a particular series of
Debt Securities, we will describe the specific terms of that
series in a prospectus supplement or any free writing
prospectus. The Debt Securities will be issued under an
open-ended Indenture (for Debt Securities) between us and a
trustee to be elected by us at or about the time we offer our
Debt Securities. The open-ended Indenture (for Debt Securities)
is incorporated by reference into the registration statement of
which this prospectus is a part and is filed as an exhibit to
the registration statement. In this prospectus we refer to the
Indenture (for Debt Securities) as the Debt Securities
Indenture. We refer to the trustee under any Debt
Securities Indenture as the Debt Securities Trustee.
The prospectus supplement or any free writing prospectus
applicable to a particular series of Debt Securities may state
that a particular series of Debt Securities will be our
subordinated obligations. The form of Debt Securities Indenture
referred to above includes optional provisions (designated by
brackets
([ ]))
that we would expect to appear in a separate indenture for
subordinated debt securities in the event we issue subordinated
debt securities. In the following discussion, we refer to any
subordinated obligations as the Subordinated Debt
Securities. Unless the applicable prospectus supplement or
any free writing prospectus provides otherwise, we will use a
separate Debt Securities Indenture for any Subordinated Debt
Securities that we may issue. Our Debt Securities Indenture will
be, qualified under the Trust Indenture Act of 1939, as
amended, and you should refer to the Trust Indenture Act
for the provisions that apply to the Debt Securities.
We have summarized selected provisions of the Debt Securities
Indenture below. Each Debt Securities Indenture will be
independent of any other Debt Securities Indenture unless
otherwise stated in a prospectus supplement or any free writing
prospectus. The summary that follows is not complete and the
summary is qualified in its entirety by reference to the
provisions of the applicable Debt Securities Indenture. You
should consult the applicable Debt Securities, Debt Securities
Indenture, any supplemental indentures, officers
certificates and other related documents for more complete
information on the Debt Securities. These documents appear as
exhibits to, or are incorporated by reference into, the
registration statement of which this
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prospectus is a part, or will appear as exhibits to other
documents that we will file with the Commission, which will be
incorporated by reference into this prospectus. In the summary
below, we have included references to applicable section numbers
of the Debt Securities Indenture so that you can easily locate
these provisions.
Ranking
Our Debt Securities that are not designated Subordinated Debt
Securities will be effectively subordinated to all secured
indebtedness that we have outstanding from time to time to the
extent of the value of the collateral securing such secured
indebtedness. Our Debt Securities that are designated
Subordinated Debt Securities will be subordinate to all
outstanding secured indebtedness as well as Debt Securities that
are not designated Subordinated Debt Securities. As of
December 31, 2010, we did not have any secured, senior
unsecured or subordinated indebtedness outstanding. The
Indenture (For Debt Securities) does not limit the amount of
secured indebtedness that we may issue or incur.
We are a holding company and conduct substantially all of our
operations through our subsidiaries. Substantially all of our
operating cash flow is generated by our subsidiaries. Our
ability to meet our financial obligations with respect to any
future Debt Securities, and cash needs generally, is dependent
on our operating cash flow, our ability to access various
sources of short- and long-term liquidity, including our bank
facilities, the capital markets and distributions from our
subsidiaries. Holders of our Debt Securities will effectively
have a junior position to claims of creditors of our
subsidiaries, including trade creditors, debt holders, secured
creditors, taxing authorities and guarantee holders.
Provisions
of a Particular Series
The Debt Securities may from time to time be issued in one or
more series. You should consult the prospectus supplement or
free writing prospectus relating to any particular series of
Debt Securities for the following information:
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the title of the Debt Securities;
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any limit on aggregate principal amount of the Debt Securities
or the series of which they are a part;
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the date(s), or method for determining the date(s), on which the
principal of the Debt Securities will be payable;
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the rate, including the method of determination if applicable,
at which the Debt Securities will bear interest, if any, and
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the date from which any interest will accrue;
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the dates on which we will pay interest;
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our ability to defer interest payments and any related
restrictions during any interest deferral period; and
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the record date for any interest payable on any interest payment
date;
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the principal of, premium, if any, and interest on the Debt
Securities will be payable;
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you may register transfer of the Debt Securities;
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you may exchange the Debt Securities; and
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you may serve notices and demands upon us regarding the Debt
Securities;
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the security registrar for the Debt Securities and whether the
principal of the Debt Securities is payable without presentment
or surrender of them;
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the terms and conditions upon which we may elect to redeem any
Debt Securities, including any replacement capital or similar
covenants limiting our ability to redeem any Subordinated Debt
Securities;
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the denominations in which we may issue Debt Securities, if
other than $1,000 and integral multiples of $1,000;
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the terms and conditions upon which the Debt Securities must be
redeemed or purchased due to our obligations pursuant to any
sinking fund or other mandatory redemption or tender provisions,
or at the holders option, including any applicable
exceptions to notice requirements;
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the currency, if other than United States currency, in which
payments on the Debt Securities will be payable;
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the terms according to which elections can be made by us or the
holder regarding payments on the Debt Securities in currency
other than the currency in which the Debt Securities are stated
to be payable;
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if payments are to be made on the Debt Securities in securities
or other property, the type and amount of the securities and
other property or the method by which the amount shall be
determined;
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the manner in which we will determine any amounts payable on the
Debt Securities that are to be determined with reference to an
index or other fact or event ascertainable outside the
applicable indenture;
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if other than the entire principal amount, the portion of the
principal amount of the Debt Securities payable upon declaration
of acceleration of their maturity;
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any addition to the events of default applicable to any Debt
Securities and any additions to our covenants for the benefit of
the holders of the Debt Securities;
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the terms applicable to any rights to convert Debt Securities
into or exchange them for other of our securities or those of
any other entity;
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whether we are issuing Debt Securities as global securities, and
if so,
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any limitations on transfer or exchange rights or the right to
obtain the registration of transfer;
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any limitations on the right to obtain definitive certificates
for the Debt Securities; and
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any other matters incidental to the Debt Securities;
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whether we are issuing the Debt Securities as bearer securities;
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any limitations on transfer or exchange of Debt Securities or
the right to obtain registration of their transfer, and the
terms and amount of any service charge required for registration
of transfer or exchange;
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any exceptions to the provisions governing payments due on legal
holidays, or any variations in the definition of business day
with respect to the Debt Securities;
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any collateral security, assurance, guarantee or other credit
enhancement applicable to the Debt Securities; and
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any other terms of the Debt Securities not in conflict with the
provisions of the applicable Debt Securities Indenture.
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For more information, see Section 301 of the applicable
Debt Securities Indenture.
Debt Securities may be sold at a substantial discount below
their principal amount. You should consult the applicable
prospectus supplement or free writing prospectus for a
description of certain special United States federal income tax
considerations that may apply to Debt Securities sold at an
original issue discount or denominated in a currency other than
dollars.
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Unless the applicable prospectus supplement or free writing
prospectus states otherwise, the covenants contained in the
applicable indenture will not afford holders of Debt Securities
protection in the event we have a change in control or are
involved in a highly-leveraged transaction.
Subordination
The applicable prospectus supplement or free writing prospectus
may provide that a series of Debt Securities will be
Subordinated Debt Securities, subordinate and junior in right of
payment to all of our Senior Indebtedness, as defined below. If
so, we will issue these securities under a separate Debt
Securities Indenture for Subordinated Debt Securities. For more
information, see Article XV of the form of Debt Securities
Indenture.
Unless the applicable prospectus supplement or free writing
prospectus states otherwise, no payment of principal of,
including redemption and sinking fund payments, or any premium
or interest on, the Subordinated Debt Securities may be made if:
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there occur certain acts of bankruptcy, insolvency, liquidation,
dissolution or other winding up of our company;
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any Senior Indebtedness is not paid when due;
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any applicable grace period with respect to other defaults with
respect to any Senior Indebtedness has ended, the default has
not been cured or waived and the maturity of such Senior
Indebtedness has been accelerated because of the default; or
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the maturity of the Subordinated Debt Securities of any series
has been accelerated because of a default and Senior
Indebtedness is then outstanding.
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Upon any distribution of our assets to creditors upon any
dissolution,
winding-up,
liquidation or reorganization, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings,
all principal of, and any premium and interest due or to become
due on, all outstanding Senior Indebtedness must be paid in full
before the holders of the Subordinated Debt Securities are
entitled to payment. For more information, see Section 1502
of the applicable Debt Securities Indenture. The rights of the
holders of the Subordinated Debt Securities will be subrogated
to the rights of the holders of Senior Indebtedness to receive
payments or distributions applicable to Senior Indebtedness
until all amounts owing on the Subordinated Debt Securities are
paid in full. For more information, see Section 1504 of the
applicable Debt Securities Indenture.
Unless the applicable prospectus supplement or free writing
prospectus states otherwise, the term Senior
Indebtedness means all obligations (other than
non-recourse obligations and the indebtedness issued under the
Subordinated Debt Securities Indenture) of, or guaranteed or
assumed by, us:
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for borrowed money (including both senior and subordinated
indebtedness for borrowed money, but excluding the Subordinated
Debt Securities);
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for the payment of money relating to any lease that is
capitalized on our consolidated balance sheet in accordance with
generally accepted accounting principles; or
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indebtedness evidenced by bonds, debentures, notes or other
similar instruments.
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In the case of any such indebtedness or obligations, Senior
Indebtedness includes amendments, renewals, extensions,
modifications and refundings, whether existing as of the date of
the Subordinated Debt Securities Indenture or subsequently
incurred by us.
The Subordinated Debt Securities Indenture does not limit the
aggregate amount of Senior Indebtedness that we may issue.
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Form,
Exchange and Transfer
Unless the applicable prospectus supplement or free writing
prospectus states otherwise, we will issue Debt Securities only
in fully registered form without coupons and in denominations of
$1,000 and integral multiples of that amount. For more
information, see Sections 201 and 302 of the applicable
Debt Securities Indenture.
Holders may present Debt Securities for exchange or for
registration of transfer, duly endorsed or accompanied by a duly
executed instrument of transfer, at the office of the security
registrar or at the office of any transfer agent we may
designate. Exchanges and transfers are subject to the terms of
the applicable indenture and applicable limitations for global
securities. We may designate ourselves the security registrar.
No charge will be made for any registration of transfer or
exchange of Debt Securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge that
the holder must pay in connection with the transaction. Any
transfer or exchange will become effective upon the security
registrar or transfer agent, as the case may be, being satisfied
with the documents of title and identity of the person making
the request. For more information, see Section 305 of the
applicable Debt Securities Indenture.
The applicable prospectus supplement or free writing prospectus
will state the name of any transfer agent, in addition to the
security registrar initially designated by us, for any Debt
Securities. We may at any time designate additional transfer
agents or withdraw the designation of any transfer agent or make
a change in the office through which any transfer agent acts. We
must, however, maintain a transfer agent in each place of
payment for the Debt Securities of each series. For more
information, see Section 602 of the applicable Debt
Securities Indenture.
We will not be required to:
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issue, register the transfer of, or exchange any Debt Securities
or any tranche of any Debt Securities during a period beginning
at the opening of business 15 days before the day of
mailing of a notice of redemption of any Debt Securities called
for redemption and ending at the close of business on the day of
mailing; or
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register the transfer of, or exchange any Debt Securities
selected for redemption except the unredeemed portion of any
Debt Securities being partially redeemed.
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For more information, see Section 305 of the applicable
Debt Securities Indenture.
Payment
and Paying Agents
Unless the applicable prospectus supplement or free writing
prospectus states otherwise, we will pay interest on a Debt
Security on any interest payment date to the person in whose
name the Debt Security is registered at the close of business on
the regular record date for the interest payment. For more
information, see Section 307 of the applicable Debt
Securities Indenture.
Unless the applicable prospectus supplement or free writing
prospectus provides otherwise, we will pay principal and any
premium and interest on Debt Securities at the office of the
paying agent whom we will designate for this purpose. Unless the
applicable prospectus supplement or free writing prospectus
states otherwise, the corporate trust office of the Debt
Securities Trustee in New York City will be designated as our
sole paying agent for payments with respect to Debt Securities
of each series. Any other paying agents initially designated by
us for the Debt Securities of a particular series will be named
in the applicable prospectus supplement or free writing
prospectus. We may at any time add or delete paying agents or
change the office through which any paying agent acts. We must,
however, maintain a paying agent in each place of payment for
the Debt Securities of a particular series. For more
information, see Section 602 of the applicable Debt
Securities Indenture.
All money we pay to a paying agent for the payment of the
principal and any premium or interest on any Debt Security that
remains unclaimed at the end of two years after payment is due
will be repaid to us. After
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that date, the holder of that Debt Security shall be deemed an
unsecured general creditor and may look only to us for these
payments. For more information, see Section 603 of the
applicable Debt Securities Indenture.
Redemption
You should consult the applicable prospectus supplement or free
writing prospectus for any terms regarding optional or mandatory
redemption of Debt Securities. Except for any provisions in the
applicable prospectus supplement or free writing prospectus
regarding Debt Securities redeemable at the holders
option, Debt Securities may be redeemed only upon notice by mail
not less than 30 nor more than 60 days prior to the
redemption date. Further, if less than all of the Debt
Securities of a series, or any tranche of a series, are to be
redeemed, the Debt Securities to be redeemed will be selected by
the method provided for the particular series. In the absence of
a selection provision, the Debt Securities Trustee will select a
fair and appropriate method of selection. For more information,
see Sections 403 and 404 of the applicable Debt Securities
Indenture.
A notice of redemption we provide may state:
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that redemption is conditioned upon receipt by the paying agent
on or before the redemption date of money sufficient to pay the
principal of and any premium and interest on the Debt
Securities; and
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that if the money has not been received, the notice will be
ineffective and we will not be required to redeem the Debt
Securities.
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For more information, see Section 404 of the applicable
Debt Securities Indenture.
Consolidation,
Merger and Sale of Assets
We may not consolidate with or merge into any other person, nor
may we transfer or lease substantially all of our assets and
property to any person, unless:
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the corporation formed by the consolidation or into which we are
merged, or the person that acquires by conveyance or transfer,
or that leases, substantially all of our property and assets:
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is organized and validly existing under the laws of any domestic
jurisdiction; and
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expressly assumes by supplemental indenture our obligations on
the Debt Securities and under the applicable indentures;
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immediately after giving effect to the transaction, no event of
default, and no event that would become an event of default, has
occurred and is continuing; and
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we have delivered to the Debt Securities Trustee an
officers certificate and opinion of counsel as provided in
the applicable indentures.
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For more information, see Section 1101 of the applicable
Debt Securities Indenture.
Events of
Default
Unless the applicable prospectus supplement or free writing
prospectus states otherwise, event of default under
the applicable indenture with respect to Debt Securities of any
series means any of the following:
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failure to pay any interest due on any Debt Security of that
series within 30 days after it becomes due;
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failure to pay principal or premium, if any, when due on any
Debt Security of that series;
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failure to make any required sinking fund payment on any Debt
Securities of that series;
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breach of or failure to perform any other covenant or warranty
in the applicable indenture with respect to Debt Securities of
that series for 60 days (subject to extension under certain
circumstances for another 120 days) after we receive notice
from the Debt Securities Trustee, or we and the Debt
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Securities Trustee receive notice from the holders of at least
33% in principal amount of the Debt Securities of that series
outstanding under the applicable indenture according to the
provisions of the applicable indenture;
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certain events of bankruptcy, insolvency or
reorganization; and
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any other event of default set forth in the applicable
prospectus supplement or free writing prospectus.
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For more information, see Section 801 of the applicable
Debt Securities Indenture.
An event of default with respect to a particular series of Debt
Securities does not necessarily constitute an event of default
with respect to the Debt Securities of any other series issued
under the applicable indenture.
If an event of default with respect to a particular series of
Debt Securities occurs and is continuing, either the Debt
Securities Trustee or the holders of at least 33% in principal
amount of the outstanding Debt Securities of that series may
declare the principal amount of all of the Debt Securities of
that series to be due and payable immediately. If the Debt
Securities of that series are discount securities or similar
Debt Securities, only the portion of the principal amount as
specified in the applicable prospectus supplement or free
writing prospectus may be immediately due and payable. If an
event of default occurs and is continuing with respect to all
series of Debt Securities issued under a Debt Securities
Indenture, including all events of default relating to
bankruptcy, insolvency or reorganization, the Debt Securities
Trustee or the holders of at least 33% in principal amount of
the outstanding Debt Securities of all series issued under that
Debt Securities Indenture, considered together, may declare an
acceleration of the principal amount of all series of Debt
Securities issued under that Debt Securities Indenture. There is
no automatic acceleration, even in the event of our bankruptcy
or insolvency.
The applicable prospectus supplement or free writing prospectus
may provide, with respect to a series of Debt Securities to
which a credit enhancement is applicable, that the provider of
the credit enhancement may, if a default has occurred and is
continuing with respect to the series, have all or any part of
the rights with respect to remedies that would otherwise have
been exercisable by the holder of that series.
At any time after a declaration of acceleration with respect to
the Debt Securities of a particular series, and before a
judgment or decree for payment of the money due has been
obtained, the event of default giving rise to the declaration of
acceleration will, without further action, be deemed to have
been waived, and the declaration and its consequences will be
deemed to have been rescinded and annulled, if:
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we have paid or deposited with the Debt Securities Trustee a sum
sufficient to pay:
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all overdue interest on all Debt Securities of the particular
series;
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the principal of and any premium on any Debt Securities of that
series that have become due otherwise than by the declaration of
acceleration and any interest at the rate prescribed in the Debt
Securities;
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interest upon overdue interest at the rate prescribed in the
Debt Securities, to the extent payment is lawful; and
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all amounts due to the Debt Securities Trustee under the
applicable indenture; and
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any other event of default with respect to the Debt Securities
of the particular series, other than the failure to pay the
principal of the Debt Securities of that series that has become
due solely by the declaration of acceleration, has been cured or
waived as provided in the applicable indenture.
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For more information, see Section 802 of the applicable
Debt Securities Indenture.
The applicable Debt Securities Indenture includes provisions as
to the duties of the Debt Securities Trustee in case an event of
default occurs and is continuing. Consistent with these
provisions, the Debt Securities Trustee will be under no
obligation to exercise any of its rights or powers at the
request or direction of any of the holders unless those holders
have offered to the Debt Securities Trustee reasonable indemnity
against the costs, expenses and liabilities that may be incurred
by it in compliance with such request or
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direction. For more information, see Section 903 of the
applicable Debt Securities Indenture. Subject to these
provisions for indemnification, the holders of a majority in
principal amount of the outstanding Debt Securities of any
series may direct the time, method and place of conducting any
proceeding for any remedy available to the Debt Securities
Trustee, or exercising any trust or power conferred on the Debt
Securities Trustee, with respect to the Debt Securities of that
series. For more information, see Section 812 of the
applicable Debt Securities Indenture.
No holder of Debt Securities may institute any proceeding
regarding the applicable indenture, or for the appointment of a
receiver or a trustee, or for any other remedy under the
applicable indenture unless:
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the holder has previously given to the Debt Securities Trustee
written notice of a continuing event of default of that
particular series;
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the holders of a majority in principal amount of the outstanding
Debt Securities of all series with respect to which an event of
default is continuing have made a written request to the Debt
Securities Trustee, and have offered reasonable indemnity to the
Debt Securities Trustee, to institute the proceeding as
trustee; and
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the Debt Securities Trustee has failed to institute the
proceeding, and has not received from the holders of a majority
in principal amount of the outstanding Debt Securities of that
series a direction inconsistent with the request, within
60 days after notice, request and offer of reasonable
indemnity.
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For more information, see Section 807 of the applicable
Debt Securities Indenture.
The preceding limitations do not apply, however, 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 the
Debt Securities on or after the applicable due date stated in
the Debt Securities. For more information, see Section 808
of the applicable Debt Securities Indenture.
We must furnish annually to the Debt Securities Trustee a
statement by an appropriate officer as to that officers
knowledge of our compliance with all conditions and covenants
under each of the indentures for Debt Securities. Our compliance
is to be determined without regard to any grace period or notice
requirement under the respective indenture. For more
information, see Section 606 of the applicable Debt
Securities Indenture.
Modification
and Waiver
We and the Debt Securities Trustee, without the consent of the
holders of the Debt Securities, may enter into one or more
supplemental indentures for any of the following purposes:
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to evidence the assumption by any permitted successor of our
covenants in the applicable indenture and the Debt Securities;
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to add one or more covenants or other provisions for the benefit
of the holders of outstanding Debt Securities or to surrender
any right or power conferred upon us by the applicable indenture;
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to add any additional events of default;
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to change or eliminate any provision of the applicable indenture
or add any new provision to it, but if this action would
adversely affect the interests of the holders of any particular
series of Debt Securities in any material respect, the action
will not become effective with respect to that series while any
Debt Securities of that series remain outstanding under the
applicable indenture;
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to provide collateral security for the Debt Securities;
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to establish the form or terms of Debt Securities according to
the provisions of the applicable indenture;
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to evidence the acceptance of appointment of a successor Debt
Securities Trustee under the applicable indenture with respect
to one or more series of the Debt Securities and to add to or
change any of the
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provisions of the applicable indenture as necessary to provide
for trust administration under the applicable indenture by more
than one trustee;
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to provide for the procedures required to permit the use of a
non-certificated system of registration for any series of Debt
Securities;
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to change any place where:
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the principal of and any premium and interest on any Debt
Securities are payable;
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any Debt Securities may be surrendered for registration of
transfer or exchange; or
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notices and demands to or upon us regarding Debt Securities and
the applicable indentures may be served; or
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to cure any ambiguity or inconsistency, but only by means of
changes or additions that will not adversely affect the
interests of the holders of Debt Securities of any series in any
material respect.
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For more information, see Section 1201 of the applicable
Debt Securities Indenture.
The holders of at least a majority in aggregate principal amount
of the outstanding Debt Securities of any series may waive:
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compliance by us with certain provisions of the applicable
indenture (see Section 607 of the applicable Debt Securities
Indenture); and
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any past default under the applicable indenture, except a
default in the payment of principal, premium, or interest and
certain covenants and provisions of the applicable indenture
that cannot be modified or amended without consent of the holder
of each outstanding Debt Security of the series affected (see
Section 813 of the applicable Debt Securities Indenture).
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The Trust Indenture Act of 1939 may be amended after
the date of the applicable indenture to require changes to the
indenture. In this event, the indenture will be deemed to have
been amended so as to effect the changes, and we and the Debt
Securities Trustee may, without the consent of any holders,
enter into one or more supplemental indentures to evidence or
effect the amendment. For more information, see
Section 1201 of the applicable Debt Securities Indenture.
Except as provided in this section, the consent of the holders
of a majority in aggregate principal amount of the outstanding
Debt Securities issued pursuant to a Debt Securities Indenture,
considered as one class, is required to change in any manner the
applicable indenture pursuant to one or more supplemental
indentures. If less than all of the series of Debt Securities
outstanding under a Debt Securities Indenture are directly
affected by a proposed supplemental indenture, however, only the
consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities of all series directly
affected, considered as one class, will be required.
Furthermore, if the Debt Securities of any series have been
issued in more than one tranche and if the proposed supplemental
indenture directly affects the rights of the holders of one or
more, but not all, tranches, only the consent of the holders of
a majority in aggregate principal amount of the outstanding Debt
Securities of all tranches directly affected, considered as one
class, will be required. In addition, an amendment or
modification:
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may not, without the consent of the holder of each outstanding
Debt Security affected:
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change the maturity of the principal of, or any installment of
principal of or interest on, any Debt Securities;
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reduce the principal amount or the rate of interest, or the
amount of any installment of interest, or change the method of
calculating the rate of interest;
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reduce any premium payable upon the redemption of the Debt
Securities;
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reduce the amount of the principal of any Debt Security
originally issued at a discount from the stated principal amount
that would be due and payable upon a declaration of acceleration
of maturity;
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change the currency or other property in which a Debt Security
or premium or interest on a Debt Security is payable; or
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impair the right to institute suit for the enforcement of any
payment on or after the stated maturity, or in the case of
redemption, on or after the redemption date, of any Debt
Securities;
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may not reduce the percentage of principal amount requirement
for consent of the holders for any supplemental indenture, or
for any waiver of compliance with any provision of or any
default under the applicable indenture, or reduce the
requirements for quorum or voting, without the consent of the
holder of each outstanding Debt Security of each series or
tranche affected; and
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may not modify provisions of the applicable indenture relating
to supplemental indentures, waivers of certain covenants and
waivers of past defaults with respect to the Debt Securities of
any series, or any tranche of a series, without the consent of
the holder of each outstanding Debt Security affected.
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A supplemental indenture will be deemed not to affect the rights
under the applicable indenture of the holders of any series or
tranche of the Debt Securities if the supplemental indenture:
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changes or eliminates any covenant or other provision of the
applicable indenture expressly included solely for the benefit
of one or more other particular series of Debt Securities or
tranches thereof; or
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modifies the rights of the holders of Debt Securities of any
other series or tranches with respect to any covenant or other
provision.
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For more information, see Section 1202 of the applicable
Debt Securities Indenture.
If we solicit from holders of the Debt Securities any type of
action, we may at our option by board resolution fix in advance
a record date for the determination of the holders entitled to
vote on the action. We shall have no obligation, however, to do
so. If we fix a record date, the action may be taken before or
after the record date, but only the holders of record at the
close of business on the record date shall be deemed to be
holders for the purposes of determining whether holders of the
requisite proportion of the outstanding Debt Securities have
authorized the action. For that purpose, the outstanding Debt
Securities shall be computed as of the record date. Any holder
action shall bind every future holder of the same security and
the holder of every security issued upon the registration of
transfer of or in exchange for or in lieu of the security in
respect of anything done or permitted by the Debt Securities
Trustee or us in reliance on that action, whether or not
notation of the action is made upon the security. For more
information, see Section 104 of the applicable Debt
Securities Indenture.
Defeasance
Unless the applicable prospectus supplement or free writing
prospectus provides otherwise, any Debt Security, or portion of
the principal amount of a Debt Security, will be deemed to have
been paid for purposes of the applicable indenture, and, at our
election, our entire indebtedness in respect of the Debt
Security, or portion thereof, will be deemed to have been
satisfied and discharged, if we have irrevocably deposited with
the Debt Securities Trustee or any paying agent other than us,
in trust money, certain eligible obligations, as defined in the
applicable indenture, or a combination of the two, sufficient to
pay principal of and any premium and interest due and to become
due on the Debt Security or portion thereof. For more
information, see Section 701 of the applicable Debt
Securities Indenture. For this purpose, unless the applicable
prospectus supplement or free writing prospectus provides
otherwise, eligible obligations include direct obligations of,
or obligations unconditionally guaranteed by, the United States,
entitled to the benefit of full faith and credit of the United
States, and certificates, depositary receipts or other
instruments that evidence a direct ownership interest in those
obligations or in any specific interest or principal payments
due in respect of those obligations.
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Resignation,
Removal of Debt Securities Trustee; Appointment of
Successor
The Debt Securities Trustee may resign at any time by giving
written notice to us or may be removed at any time by an action
of the holders of a majority in principal amount of outstanding
Debt Securities delivered to the Debt Securities Trustee and us.
No resignation or removal of the Debt Securities Trustee and no
appointment of a successor trustee will become effective until a
successor trustee accepts appointment in accordance with the
requirements of the applicable indenture. So long as no event of
default or event that would become an event of default has
occurred and is continuing, and except with respect to a Debt
Securities Trustee appointed by an action of the holders, if we
have delivered to the Debt Securities Trustee a resolution of
our board of directors appointing a successor trustee and the
successor trustee has accepted the appointment in accordance
with the terms of the applicable indenture, the Debt Securities
Trustee will be deemed to have resigned and the successor
trustee will be deemed to have been appointed as trustee in
accordance with the applicable indenture. For more information,
see Section 910 of the applicable Debt Securities Indenture.
Notices
We will give notices to holders of Debt Securities by mail to
their addresses as they appear in the Debt Security Register.
For more information, see Section 106 of the applicable
Debt Securities Indenture.
Title
The Debt Securities Trustee and its agents, and we and our
agents, may treat the person in whose name a Debt Security is
registered as the absolute owner of that Debt Security, whether
or not that Debt Security may be overdue, for the purpose of
making payment and for all other purposes. For more information,
see Section 308 of the applicable Debt Securities Indenture.
Governing
Law
The Debt Securities Indentures and the Debt Securities,
including any Subordinated Debt Securities Indentures and
Subordinated Debt Securities, will be governed by, and construed
in accordance with, the law of the State of New York. For more
information, see Section 112 of the applicable Debt
Securities Indenture.
Regarding
the Indenture Trustees
In the normal course of business, we and our subsidiaries may
conduct banking transactions with the indenture trustees, and
the indenture trustees may conduct banking transactions with us
and our subsidiaries.
DESCRIPTION
OF WARRANTS
We may issue, either separately or together with other
securities, warrants for the purchase of any, including any
combination of, debt securities, common stock or preferred stock
that we may sell. Warrants may be issued independently or
together with debt securities, preferred stock or common stock
offered by any prospectus supplement and may be attached to or
separate from any such offered securities. Any warrants will be
issued under warrant agreements to be entered into between us
and a bank or trust company, as warrant agent, all to be set
forth in the applicable prospectus supplement relating to any or
all warrants with respect to which this prospectus is being
delivered. Copies of the form of agreement for each warrant and
the warrant certificate, if any, which we refer to collectively
as warrant agreements, and reflecting the provisions
to be included in such agreements that will be entered into with
respect to a particular offering of each type of warrant, will
be filed with the Commission and incorporated by reference as
exhibits to the registration statement of which this prospectus
is a part.
The following description sets forth certain general terms and
provisions of the warrants to which any prospectus supplement
may relate. The particular terms of such warrants and the
extent, if any, to which the general provisions may apply to the
warrants so offered will be described in the applicable
prospectus supplement. To the extent that any particular terms
of the warrants, warrant agreements or warrant certificates
described in a prospectus supplement differ from any of the
terms described in this section, then the terms
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described in this section will be deemed to have been superseded
by that prospectus supplement. We encourage you to read the
applicable warrant agreement for additional information before
you purchase any of our warrants.
General
The prospectus supplement will describe the terms of the
warrants with respect to which this prospectus is being
delivered, as well as the related warrant agreement and warrant
certificates, including the following, where applicable:
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the securities that may be purchased upon exercise of the
warrants;
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the number or principal amount of, securities, as the case may
be, purchasable upon exercise of each warrant;
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the initial price at which such number or principal amount of
securities may be purchased upon such exercise (and if such
price may be wholly or partly payable in cash or wholly or
partly payable with other types of consideration);
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the designation and terms of the securities, if other than
common stock, purchasable upon exercise of the warrants and of
any securities, if other than common stock, with which the
warrants are issued;
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the procedures and conditions relating to the exercise of the
warrants;
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the date, if any, on and after which the warrants, and any
securities with which the warrants are issued, will be
separately transferable;
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the offering price, if any, of the warrants;
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the date on which the right to exercise the warrants will
commence and the date on which that right will expire;
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if applicable, a discussion of the material United States
federal income tax considerations applicable to the exercise of
the warrants;
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whether the warrants represented by the warrant certificates
will be issued in registered or bearer form and, if registered,
where they may be transferred and registered;
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whether the warrants will be listed on any securities exchange;
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call provisions, if any, of the warrants;
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anti-dilution provisions, if any, of the warrants
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the name of the warrant agent; and
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any other material terms of the warrants.
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The description of warrants in the prospectus supplement will
not necessarily be complete and will be qualified in its
entirety by reference to the warrant agreement relating to the
warrants being offered.
No Rights
of Security Holder Prior to Exercise
Before the exercise of their warrants and their registration as
holders of the underlying securities, holders of warrants will
not have any of the rights of registered holders of the
underlying securities purchasable upon the exercise of the
warrants, and will not be entitled to, among other things, vote
or receive dividend or interest payments or similar
distributions on the securities purchasable upon exercise.
23
DESCRIPTION
OF UNITS
This section describes some of the general terms and provisions
applicable to units we may issue from time to time. We will
describe the specific terms of a series of units and the
applicable unit agreement in the applicable prospectus
supplement. The following description and any description of the
units in the applicable prospectus supplement may not be
complete and is subject to and qualified in its entirety by
reference to the terms and provisions of the applicable unit
agreement. A form of the unit agreement reflecting the
particular terms and provisions of a series of offered units
will be filed with the Commission in connection with the
offering and incorporated by reference in the registration
statement and this prospectus.
We may issue units from time to time in such amounts and in as
many distinct series as we determine. We will issue each series
of units under a unit agreement to be entered into between us
and a unit agent to be designated in the applicable prospectus
supplement. When we refer to a series of units, we mean all
units issued as part of the same series under the applicable
unit agreement.
We may issue units consisting of any combination of two or more
securities described in this prospectus. Each unit will be
issued so that the holder of the unit is also the holder of each
security included in the unit. Thus, the holder of a unit will
have the rights and obligations of a holder of each included
security. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held
or transferred separately, at any time or at any time before a
specified date.
The applicable prospectus supplement will describe the terms of
the units offered pursuant to it, including one or more of the
following:
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the designation and terms of the units and of the securities
comprising the units, including whether and under what
circumstances those securities may be held or transferred
separately;
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the aggregate number of, and the price at which we will issue,
the units any provisions for the issuance, payment, settlement,
transfer or exchange of the units or of the securities
comprising the units;
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whether the units will be issued in fully registered or global
form;
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the name of the unit agent;
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a description of the terms of any unit agreement to be entered
into between us and a bank or trust company, as unit agent,
governing the units;
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if applicable, a discussion of the U.S. federal income tax
consequences; and
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whether the units will be listed on any securities exchange.
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GLOBAL
SECURITIES
We may issue some or all of our securities of any series as
global securities. We will register each global security in the
name of a depositary identified in the applicable prospectus
supplement. The global securities will be deposited with a
depositary or nominee or custodian for the depositary and will
bear a legend regarding restrictions on exchanges and
registration of transfer as discussed below and any other
matters to be provided pursuant to the indenture.
As long as the depositary or its nominee is the registered
holder of a global security, that person will be considered the
sole owner and holder of the global security and the securities
represented by it for all purposes under the securities and the
indenture. Except in limited circumstances, owners of a
beneficial interest in a global security:
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will not be entitled to have the global security or any
securities represented by it registered in their names;
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will not receive or be entitled to receive physical delivery of
certificated securities in exchange for the global
security; and
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will not be considered to be the owners or holders of the global
security or any securities represented by it for any purposes
under the securities or the indenture.
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We will make all payments of principal and any premium and
interest on a global security to the depositary or its nominee
as the holder of the global security. The laws of some
jurisdictions require that certain purchasers of securities take
physical delivery of 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 having accounts with the depositary or
its nominee, called participants for purposes of
this discussion, and to persons that hold beneficial interests
through participants. When a global security is issued, the
depositary will credit on its book-entry, registration and
transfer system the principal amounts of 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:
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the depositary, with respect to participants
interests; or
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any participant, with respect to interests of persons held by
the participants on their behalf.
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Payments by participants to owners of beneficial interests held
through the participants will be the responsibility of the
participants. The depositary may from time to time adopt various
policies and procedures governing payments, transfers, exchanges
and other matters relating to beneficial interests in a global
security. None of the following will have any responsibility or
liability for any aspect of the depositarys or any
participants 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
those beneficial interests:
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us or our affiliates;
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the trustee under any indenture; or
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any agent of any of the above.
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SELLING
STOCKHOLDERS
The shares of our common stock included in the registration
statement of which this prospectus forms a part may be offered
and sold by any selling stockholder to be named in a prospectus
supplement. We have registered these shares of our common stock
to permit selling stockholders to resell their shares of our
common stock when they deem appropriate. A selling stockholder
may resell all, a portion or none of such stockholders
shares of our common stock at any time and from time to time, so
long as a prospectus supplement is available. Selling
stockholders also may sell, transfer or otherwise dispose of
some or all of their shares of our common stock in transactions
exempt from the registration requirements of the Securities Act.
We do not know when or in what amounts any selling stockholder
may offer shares of our common stock for sale under this
prospectus and any prospectus supplement. We will not receive
any proceeds from any sale of shares of our common stock by any
selling stockholder under this prospectus and any applicable
prospectus supplement. Unless otherwise stated in any prospectus
supplement, we do not expect to pay any expenses incurred with
respect to the registration of the shares of our common stock
owned by any selling stockholder and we expect underwriting
fees, discounts or commissions, to be borne by such selling
stockholders. We will provide you with a prospectus supplement
naming any selling stockholder, the amount of shares of our
common stock to be registered and sold and any other terms of
the shares of our common stock being sold by each such selling
stockholder. In connection with any offering of their common
stock, selling stockholders may be deemed
underwriters as defined under the Securities Act.
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PLAN OF
DISTRIBUTION
We or any selling stockholder may use this prospectus and any
accompanying prospectus supplement to sell our securities from
time to time as follows:
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directly to purchasers;
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through underwriters;
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through dealers;
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through agents;
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through any combination of these methods; or
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through any other method permitted by applicable law and
described in a prospectus supplement.
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Each prospectus supplement relating to an offering of securities
will set forth the specific plan of distribution and state the
terms of the offering, including:
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the method of distribution of the securities offered therein;
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the names of any underwriters, dealers, or agents;
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the public offering or purchase price of the offered securities
and the net proceeds that we will receive from the sale;
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any underwriting discounts, commissions or other items
constituting underwriters compensation;
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any discounts, commissions, or fees allowed, re-allowed or paid
to dealers or agents;
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any securities exchange on which the offered securities may be
listed.
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Any initial public offering price and any discounts,
commissions, fees or concessions allowed or reallowed or paid to
underwriters, dealers, or agents may be changed from time to
time.
Distribution
Through Underwriters
We or any selling stockholder may offer and sell our securities
from time to time to one or more underwriters who would purchase
the securities as principal for resale to the public, either on
a firm commitment or best efforts basis. If underwriters are
used in the sale of our securities, we or any selling
stockholder will execute an underwriting agreement with them at
the time of the sale and will name them in the applicable
supplement. In connection with these sales, the underwriters may
be deemed to have received compensation from us or any selling
stockholder in the form of underwriting discounts and
commissions. The underwriters also may receive commissions from
purchasers of securities for whom they may act as agent. Unless
we or any selling stockholder specify otherwise in the
applicable supplement, the underwriters will not be obligated to
purchase the securities unless the conditions set forth in the
underwriting agreement are satisfied, and if the underwriters
purchase any of the securities, they generally will be required
to purchase all of the offered securities. The underwriters may
acquire the securities for their own account and may resell the
securities from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering
price or varying prices determined at the time of sale. The
underwriters may sell the offered securities to or through
dealers, and those dealers may receive discounts, concessions,
or commissions from the underwriters as well as from the
purchasers for whom they may act as agent.
Distribution
Through Dealers
We or any selling stockholder may offer and sell securities from
time to time to one or more dealers who would purchase the
securities as principal. The dealers then may resell the offered
securities to the public at fixed or varying prices to be
determined by those dealers at the time of resale. We will set
forth the names of any dealers and the terms of the transaction
in the applicable supplement.
26
Distribution
Through Agents
We or any selling stockholder may offer and sell our securities
on a continuous basis through agents that become parties to an
underwriting or distribution agreement. We will name any agent
involved in the offer and sale, and describe any commissions
payable by us or any selling stockholder in the applicable
supplement. Unless we or any selling stockholder specify
otherwise in the applicable supplement, the agent will be acting
on a best efforts basis during the appointment period. The agent
may make sales in privately negotiated transactions and by any
other method permitted by law, including sales deemed to be an
at-the-market
offering as defined in Rule 415 promulgated under the
Securities Act, including sales made directly on the Nasdaq
Stock Market, or sales made to or through a market maker other
than on an exchange.
Direct
Sales
We or any selling stockholder may sell directly to, and solicit
offers from, institutional investors or others who may be deemed
to be underwriters, as defined in the Securities Act, for any
resale of the securities. We will describe the terms of any
sales of this kind in the applicable supplement.
General
Information
Selling stockholders, underwriters, dealers, or agents
participating in an offering of securities may be deemed to be
underwriters, and any discounts and commissions received by them
and any profit realized by them on resale of the offered
securities, may be deemed to be underwriting discounts and
commissions under the Securities Act.
We or any selling stockholder may offer to sell securities
either at a fixed price or at prices that may vary, at market
prices prevailing at the time of sale, at prices related to
prevailing market prices, or at negotiated prices. Securities
may be sold in connection with a remarketing after their
purchase by one or more firms acting as principal for their own
accounts or as our agent. In addition, we may issue the
securities as a dividend or distribution or in a subscription
rights offering to our existing security holders.
In connection with an underwritten offering of the securities,
the underwriters may engage in over-allotment, stabilizing
transactions and syndicate covering transactions in accordance
with Regulation M under the Exchange Act. Over-allotment
involves sales in excess of the offering size, which creates a
short position for the underwriters. The underwriters may enter
bids for, and purchase, securities in the open market in order
to stabilize the price of the securities. Syndicate covering
transactions involve purchases of the securities in the open
market after the distribution has been completed in order to
cover short positions. In addition, the underwriting syndicate
may reclaim selling concessions allowed to an underwriter or a
dealer for distributing the securities in the offering if the
syndicate repurchases previously distributed securities in
transactions to cover syndicate short positions, in
stabilization transactions, or otherwise. These activities may
cause the price of the securities to be higher than it would
otherwise be. Those activities, if commenced, may be
discontinued at any time.
Ordinarily, each issue of securities will be a new issue, and
there will be no established trading market for any security
other than our common stock, which is listed on The Nasdaq Stock
Market under the symbol TDSC, prior to its original
issue date. We may not list any particular series of securities
on a securities exchange or quotation system. Any underwriters
to whom or agents through whom the offered securities are sold
for offering and sale may make a market in the offered
securities. However, any underwriters or agents that make a
market will not be obligated to do so and may stop doing so at
any time without notice. We cannot assure you that there will be
a liquid trading market for the offered securities.
We or any selling stockholder may authorize underwriters,
dealers or agents to solicit offers by certain purchasers to
purchase the securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date
in the future. The contracts will be subject only to those
conditions set forth in the related prospectus supplement, and
the
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related prospectus supplement will set forth any commissions we
or any selling stockholder pay for solicitation of these
contracts.
We may offer subscription rights to our existing stockholders to
purchase additional shares of our common stock, preferred stock
or any combination thereof. For any particular subscription
rights, the applicable prospectus supplement will describe the
terms of such rights, including the period during which such
rights may be exercised, the manner of exercising such rights,
the transferability of such rights and the number of shares of
common stock or preferred stock that may be purchased in
connection with each right and the subscription price for the
purchase of such shares. In connection with a rights offering,
we may enter into a separate agreement with one or more
underwriters or standby purchasers to purchase any shares of our
common stock or preferred stock not subscribed for in the rights
offering by existing stockholders. We may pay the standby
underwriters a commitment fee for the securities they commit to
purchase on a standby basis. If we do not enter into a standby
underwriting arrangement, we may retain a dealer-manager to
manage a subscription rights offering for us.
Under agreements entered into with us or any selling
stockholder, underwriters and agents may be entitled to
indemnification by us or any selling stockholder against certain
civil liabilities, including liabilities under the Securities
Act, or to contribution for payments the underwriters or agents
may be required to make.
The maximum commission or discount to be received by any member
of the Financial Industry Regulatory Authority, Inc. or
independent broker-dealer will not exceed the then current
allowable percentage of the initial gross proceeds from the sale
of any security being sold.
Although we expect that delivery of securities generally will be
made against payment on or about the third business day
following the date of any contract for sale, we may specify a
longer settlement cycle in the applicable supplement. Under
Rule 15c6-1
of the Exchange Act, trades in the secondary market generally
are required to settle in three business days, unless the
parties to a trade expressly agree otherwise. Accordingly, if we
have specified a longer settlement cycle in the applicable
supplement for an offering of securities, purchasers who wish to
trade those securities on the date of the contract for sale, or
on one or more of the next succeeding business days as we may
specify in the applicable supplement, will be required, by
virtue of the fact that those securities will settle in more
than T+3, to specify an alternative settlement cycle at the time
of the trade to prevent a failed settlement and should consult
their own advisors in connection with that election.
Conflict
of Interest
We may engage underwriters, dealers and agents in connection
with the offering of any of the securities described in this
prospectus, some of whom may have a conflict of
interest, as such term is defined by the Financial
Industry Regulatory Authority, Inc. In the event an underwriter,
dealer or agent who is participating in the offering has a
conflict of interest, we will describe the nature of the
conflict in the applicable prospectus supplement, and, if
applicable, the name of the underwriter, dealer or agent who is
acting as the qualified independent underwriter and
its role and responsibilities in the offering.
The underwriters, dealers and agents that we may use, as well as
their affiliates, may engage in financial or other business
transactions with, or perform other services for, us and our
subsidiaries in the ordinary course of business and may receive
a portion of the proceeds from this offering.
LEGAL
MATTERS
Unless otherwise specified in the applicable prospectus
supplement, the validity of the issuance of the securities
offered hereby will be passed upon by Robert M. Grace, Jr.,
our Vice President, General Counsel and Secretary. From time to
time, our outside counsel may advise us concerning issues
related to the offering of securities pursuant to this
prospectus. As of February 28, 2011, Mr. Grace
beneficially owned, or had options to acquire, a number of
shares of our common stock, which represented less than 0.2% of
our total
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outstanding common stock. Any underwriters, dealers or agents
will be advised by their own legal counsel concerning issues
related to the offering of securities pursuant to this
prospectus.
EXPERTS
The consolidated financial statements and schedule as of
December 31, 2010 and 2009 and for each of the three years
in the period ended December 31, 2010, and the assessment
of the effectiveness of internal control over financial
reporting as of December 31, 2010 incorporated by reference
in this prospectus have been so incorporated herein in reliance
upon the reports of BDO USA, LLP, an independent registered
public accounting firm, incorporated herein by reference, given
on the authority of such firm as experts in accounting and
auditing.
29
PART II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
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ITEM 14.
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OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION
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Expenses payable in connection with the registration and
distribution of the securities being registered hereunder, all
of which will be borne by the Registrant, are as follows. All
amounts are estimates, except the Commission registration fee.
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Amount to
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be Paid (1)
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Securities and Exchange Commission registration fee
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$
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*
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Accounting fees and expenses
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5,200
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Legal fees and expenses
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16,000
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Printer expenses
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10,000
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Miscellaneous (including transfer agent fees)
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5,000
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Total
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$
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*
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(1) |
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Does not include expenses of preparing and printing any
accompanying prospectus supplements, listing fees, trustee fees
and expenses, warrant or unit agent fees and expenses, transfer
agent fees and other expenses related to offerings of particular
securities from time to time. Estimated fees and expenses
associated with future offerings will be provided in the
applicable prospectus supplement. |
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In reliance on Rules 456(b) and 457(r) under the Securities
Act, the Registrant is deferring payment of all of the
registration fee, except for $5,348 that may be offset pursuant
to Rule 457(p) for fees paid with respect to the
$75,000,000 aggregate initial offering price of securities that
were previously registered pursuant to Registration Statement
No. 333-165053
and not sold thereunder. In connection with the securities
registered hereunder, except as specified in the previous
sentence, the Registrant will pay pay-as-you-go
registration fees in accordance with Rule 456(b). |
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ITEM 15.
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INDEMNIFICATION
OF DIRECTORS AND OFFICERS
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Section 145 of the Delaware General Corporation Law
authorizes a court to award, or a corporations board of
directors to grant, indemnity to directors and officers in terms
sufficiently broad to permit such indemnification under certain
circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act of 1933.
As permitted by the Delaware General Corporation Law, our
Certificate of Incorporation, as amended, includes a provision
that eliminates the personal liability of our directors for
monetary damages for breach of fiduciary duty as a director,
except for liability:
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for any breach of the directors duty of loyalty to us or
our stockholders;
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for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
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under section 174 of the Delaware General Corporation law
regarding unlawful dividends and stock purchases; or
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for any transaction for which the director derived an improper
personal benefit.
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As permitted by the Delaware General Corporation Law, our
Certificate of Incorporation and our Amended and Restated
By-Laws provide that:
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with respect to any action or proceeding not brought by us, we
have the power to indemnify any person who was or is a party or
is threatened to be made a party to any action or proceeding if
that person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best
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interests of our company, and with respect to any criminal
action or proceeding, had no reasonable cause to believe that
his or her conduct was unlawful;
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with respect to any action or proceeding brought by us, we have
the power to indemnify any person who was or is a party or is
threatened to be made a party to any action or proceeding if
that person acted in good faith and in a manner that he or she
reasonably believed to be in or not opposed to the best
interests of our company; provided, however, that no
indemnification shall be made in respect of any claim, issue or
matter as to which that person is adjudged to be liable to us,
unless, and only to the extent that, the court determines that
the person is fairly and reasonably entitled to indemnity;
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to the extent that a director, officer, employee or agent of our
company has been successful on the merits or otherwise in
defense of any action or proceeding, he or she shall be
indemnified against expenses incurred by him or her;
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expenses incurred in defending a civil or criminal action or
proceeding shall be paid by us in advance of the final
disposition of the action or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee
or agent to repay that amount if it is ultimately determined
that he or she is not entitled to indemnification; and
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the rights conferred in the Amended and Restated By-Laws are not
exclusive.
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The following exhibits are filed herewith or incorporated by
reference herein as indicated:
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Exhibit No.
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Description
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1
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.1
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Form of Underwriting Agreement.*
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3
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.1
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Certificate of Incorporation of Registrant. (Incorporated by
reference to Exhibit 3.1 to Form 8-B filed on August 16, 1993,
and the amendment thereto, filed on Form 8-B/A on February 4,
1994.)
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3
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.2
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Amendment to Certificate of Incorporation filed on May 23, 1995.
(Incorporated by reference to Exhibit 3.2 to Registrants
Registration Statement on Form S-2/A, filed on May 25, 1995.)
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3
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.3
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Certificate of Amendment of Certificate of Incorporation filed
with Secretary of State of Delaware on May 19, 2004.
(Incorporated by reference to Exhibit 3.1 of the
Registrants Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2004, filed on August 5, 2004.)
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3
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.4
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Certificate of Amendment of Certificate of Incorporation filed
with Secretary of State of Delaware on May 17, 2005.
(Incorporated by reference to Exhibit 3.1 of the
Registrants Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2005, filed on August 1, 2005.)
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3
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.5
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Amended and Restated By-Laws. (Incorporated by reference to
Exhibit 3.2 of the Registrants Current Report on Form 8-K,
filed on December 1, 2006.)
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4
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.1
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Specimen Common Stock Certificate.
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4
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.2
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Rights Agreement, dated as of December 9, 2008 between the
Registrant and Computershare Trust Company, N.A., as rights
agent, (Incorporated by reference to Exhibit 4.1 to the
Registrants Current Report on Form 8-K, filed on December
9, 2008.)
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4
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.3
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Certificate of Designations, Preferences and Rights of Series A
Preferred Stock, filed with the Secretary of State of Delaware
on December 9, 2008. (Incorporated by reference to Exhibit 3.1
of Registrants Current Report on Form 8-K, filed on
December 9, 2008.)
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4
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.4
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Form of Certificate of Designation (for Preferred Stock).*
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4
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.5
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Specimen Preferred Stock Certificate.*
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4
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.6
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Indenture (for [Subordinated] Debt Securities) (open-ended).
(Incorporated by reference to Exhibit 4.6 of the
Registrants Registration Statement on Form S-3 (No.
333-165053) filed February 24, 2010.)
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4
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.7
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Form of Warrant Agreement.*
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4
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.8
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Form of Warrant Certificate.*
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4
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.9
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Form of Unit Agreement.*
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4
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.10
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Form of Unit Certificate.*
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5
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.1
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Opinion of Robert M. Grace, Jr. as to the validity of the
securities being registered.
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12
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.1
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Computation of Ratio of Earnings to Fixed Charges.
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II-2
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Exhibit No.
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Description
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.1
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Consent of BDO USA, LLP.
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.2
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Consent of Robert M. Grace, Jr. (included in Exhibit 5.1).
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.1
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Power of Attorney (included on signature page).
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25
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.1
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Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of the Trustee under the Indenture (for
Debt Securities).**
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25
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.2
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Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of the Trustee under the Indenture (for
Subordinated Debt Securities).**
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* |
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To be filed by amendment or as an exhibit to a report filed
under the Securities Exchange Act of 1934 and incorporated
herein by reference |
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Where applicable, to be incorporated by reference to a
subsequent filing in accordance with Section 305 (b)(2) of
the Trust Indenture Act of 1939, as amended. |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in the
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 this
Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, that: paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
II-3
(b) The undersigned registrant hereby undertakes that, for
the purpose of determining liability under the Securities Act of
1933 to any purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of this
Registration Statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(B) Each prospectus required to be filed pursuant to
Rule 424(b)(2), or (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii),or
(x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date; or
That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(d) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in 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.
(e) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise,
II-4
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 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 Act and will be
governed by the final adjudication of such issue.
(f) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act of 1939 in accordance with the
rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)(2) of the
Trust Indenture Act of 1939.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 3D
Systems Corporation certifies that it has reasonable grounds to
believe that it meets the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Rock Hill, State of South Carolina, on March 3,
2011.
3D SYSTEMS CORPORATION
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By
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/s/ Abraham
N. Reichental
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Abraham N. Reichental
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert M. Grace, Jr.
and Andrew M. Johnson, or either of them, his or her true and
lawful attorney-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to
this Registration Statement, and to sign any related
Registration Statement filed pursuant to Rule 462(b) under
the Securities Act of 1933, and to file the same, with all
exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granted unto said
attorney-in-fact and agents, full power and authority to do and
to perform each and every act and thing required and necessary
to be done in and about the premises, as fully to all intents
and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and
agents, or any of them or their substitute or substitutes, could
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities indicated on March 3, 2011.
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Signature
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Title
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/s/ Abraham
N. Reichental
Abraham
N. Reichental
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Director, President and Chief Executive Officer
(Principal Executive Officer)
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/s/ Damon
J. Gregoire
Damon
J. Gregoire
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Senior Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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/s/ Charles
W. Hull
Charles
W. Hull
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Director, Vice President and Chief Technology Officer
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/s/ William
E. Curran
William
E. Curran
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Director
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/s/ Jim
D. Kever
Jim
D. Kever
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Director
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/s/ G.
Walter Loewenbaum, II
G.
Walter Loewenbaum, II
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Director, Chairman of the Board
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/s/ Kevin
S. Moore
Kevin
S. Moore
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Director
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/s/ Daniel
S. Van Riper
Daniel
S. Van Riper
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Director
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/s/ Karen
E. Welke
Karen
E. Welke
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Director
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II-6
EXHIBIT INDEX
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Exhibit No.
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Description
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1
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.1
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Form of Underwriting Agreement.*
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3
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.1
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Certificate of Incorporation of Registrant. (Incorporated by
reference to Exhibit 3.1 to Form 8-B filed on August 16, 1993,
and the amendment thereto, filed on Form 8-B/A on February 4,
1994.)
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3
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.2
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Amendment to Certificate of Incorporation filed on May 23, 1995.
(Incorporated by reference to Exhibit 3.2 to Registrants
Registration Statement on Form S-2/A, filed on May 25, 1995.)
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3
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.3
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Certificate of Amendment of Certificate of Incorporation filed
with Secretary of State of Delaware on May 19, 2004.
(Incorporated by reference to Exhibit 3.1 of the
Registrants Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2004, filed on August 5, 2004.)
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3
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.4
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Certificate of Amendment of Certificate of Incorporation filed
with Secretary of State of Delaware on May 17, 2005.
(Incorporated by reference to Exhibit 3.1 of the
Registrants Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2005, filed on August 1, 2005.)
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3
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.5
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Amended and Restated By-Laws. (Incorporated by reference to
Exhibit 3.2 of the Registrants Current Report on Form 8-K,
filed on December 1, 2006.)
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4
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.1
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Specimen Common Stock Certificate.
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4
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.2
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Rights Agreement, dated as of December 9, 2008 between the
Registrant and Computershare Trust Company, N.A., as rights
agent, (Incorporated by reference to Exhibit 4.1 to the
Registrants Current Report on Form 8-K, filed on December
9, 2008.)
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4
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.3
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Certificate of Designations, Preferences and Rights of Series A
Preferred Stock, filed with the Secretary of State of Delaware
on December 9, 2008. (Incorporated by reference to Exhibit 3.1
of Registrants Current Report on Form 8-K, filed on
December 9, 2008.)
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4
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.4
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Form of Certificate of Designation (for Preferred Stock).*
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4
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.5
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Specimen Preferred Stock Certificate.*
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4
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.6
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Indenture (for [Subordinated] Debt Securities) (open-ended).
(Incorporated by reference to Exhibit 4.6 of the
Registrants Registration Statement on Form S-3 (No.
333-165053) filed February 24, 2010.)
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4
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.7
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Form of Warrant Agreement.*
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4
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.8
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Form of Warrant Certificate.*
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4
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.9
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Form of Unit Agreement.*
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4
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.10
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Form of Unit Certificate.*
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5
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.1
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Opinion of Robert M. Grace, Jr. as to the validity of the
securities being registered.
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12
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.1
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Computation of Ratio of Earnings to Fixed Charges.
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23
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.1
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Consent of BDO USA, LLP.
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23
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.2
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Consent of Robert M. Grace, Jr. (included in Exhibit 5.1).
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24
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.1
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Power of Attorney (included on signature page).
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25
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.1
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Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of the Trustee under the Indenture (for
Debt Securities).**
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25
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.2
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Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of the Trustee under the Indenture (for
Subordinated Debt Securities).**
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* |
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To be filed by amendment or as an exhibit to a report filed
under the Securities Exchange Act of 1934 and incorporated
herein by reference |
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** |
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Where applicable, to be incorporated by reference to a
subsequent filing in accordance with Section 305 (b)(2) of
the Trust Indenture Act of 1939, as amended. |