Table of Content
As filed with the Securities and Exchange Commission on May 25,
2023
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CVS HEALTH CORPORATION
(Exact name of registrant as specified in its
charter)
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Delaware |
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05-0494040 |
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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One CVS Drive
Woonsocket, Rhode Island 02895
(401) 765-1500
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive
offices)
Shawn M. Guertin
Executive Vice President and Chief Financial
Officer
CVS Health Corporation
One CVS Drive
Woonsocket, Rhode Island 02895
(401) 765-1500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
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Lona Nallengara
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
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Samrat S. Khichi, Esq.
Executive Vice President, Chief Policy
Officer and General Counsel
CVS Health Corporation
One CVS Drive
Woonsocket, Rhode Island 02895
(401) 765-1500
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Approximate date of commencement of proposed sale to the
public: From time to time after this Registration Statement
becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box: ☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box: ☒
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the
earlier effective registration statement for the same
offering. ☐
If this Form is a 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. ☒
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. ☐
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act. ☐
PROSPECTUS
CVS HEALTH CORPORATION
DEBT SECURITIES
We may offer debt securities from time to time. Specific terms and
prices of these securities will be provided in supplements to this
prospectus. The prospectus supplements may also add to, update or
change information contained in this prospectus. This prospectus
may not be used to offer or sell any debt securities unless
accompanied by a prospectus supplement. You should read this
prospectus and the applicable prospectus supplement carefully
before you invest in the debt securities.
CVS Health Corporation’s common stock is listed on the New York
Stock Exchange under the symbol “CVS”.
Investing in these securities involves certain risks. See the
information included and incorporated by reference into this
prospectus for a discussion of the factors you should carefully
consider before deciding to purchase these
securities.
Neither the Securities and Exchange Commission (“SEC”), any state
securities commission nor any other regulatory authority has
approved or disapproved the securities offered hereby, nor have any
of the foregoing authorities passed upon or endorsed the merits 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 May 25, 2023.
The information contained in this prospectus is not complete and
may be changed. We are not making an offer of the debt securities
in any state where the offer is not permitted. We have not
authorized anyone to provide any information other than that
contained or incorporated by reference in this prospectus or in any
prospectus supplement or free writing prospectus prepared by or on
behalf of us or to which we have referred you. We take no
responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. You
should not assume that the information contained in or incorporated
by reference in this prospectus or any prospectus supplement or in
any such free writing prospectus is accurate as of any date other
than their respective dates, regardless of the time of delivery of
this prospectus or any sale or issuance of a security.
The terms “CVS Health,” the “Company,” “we,” “us,” and “our” refer
to CVS Health Corporation together with its
subsidiaries.
TABLE OF CONTENTS
ABOUT THIS
PROSPECTUS
This prospectus is part of a registration statement that we filed
with the SEC utilizing a “shelf” registration process. Under this
shelf registration process, we may sell or issue, in one or more
offerings, any combination of the debt securities described in this
prospectus in one or more series.
This prospectus provides you with a general description of the debt
securities we may offer. Each time we sell debt securities, we will
provide a prospectus supplement or other offering material that
will contain specific information about the terms of that specific
offering of securities and the specific manner in which they may be
offered. The prospectus supplement may also add, update or change
information contained in this prospectus. To the extent that any
statement we make in a prospectus supplement or other offering
material is inconsistent with statements made in this prospectus,
the statements made in this prospectus will be deemed modified or
superseded by those made in the prospectus supplement or other
offering material. The prospectus supplement or other offering
material may also contain information about any material federal
income tax considerations relating to the securities described in
the prospectus supplement. You should read both this prospectus and
any prospectus supplement together with additional information
described under the heading “Where You Can Find More Information.”
This prospectus may not be used to consummate a sale of
securities unless it is accompanied by a prospectus
supplement.
This prospectus contains summaries of certain documents, but
reference is made to the actual documents for complete information.
All such summaries are qualified in their entirety by such
reference. Copies of documents referred to herein will be made
available to prospective investors upon request to us. See “Where
You Can Find More Information.”
The registration statement that contains this prospectus (the
“Registration Statement”), including the exhibits thereto, contains
additional information about us and the securities offered under
this prospectus. The Registration Statement is available on the SEC
website (https://www.sec.gov).
RISK FACTORS
You should carefully consider all the information set forth in this
prospectus, any accompanying prospectus supplement and the other
documents incorporated by reference herein and therein before
deciding to invest in the debt securities. In particular, we urge
you to consider carefully the factors set forth under “Cautionary
Statement Concerning Forward-Looking Statements” in this prospectus
and the risk factors set forth below together with those set forth
under “Risk Factors” in the Company’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2022 and
Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2023, each incorporated by reference herein and any updates
thereto in our subsequent SEC filings.
THE COMPANY
Introduction
CVS Health is a leading diversified health solutions company
reshaping health care to help make healthier happen for more
Americans. In an increasingly connected and digital world, CVS
Health is meeting people wherever they are and changing health care
to meet their needs. The Company has more than 9,000 retail
locations, more than 1,100 walk-in medical clinics, a leading
pharmacy benefits manager with over 110 million plan members with
expanding specialty pharmacy solutions and a dedicated senior
pharmacy care business serving more than one million patients per
year. The Company also serves an estimated 37 million people
through traditional, voluntary and consumer-directed health
insurance products and related services, including expanding
Medicare Advantage offerings and a leading standalone Medicare Part
D prescription drug plan (“PDP”). The Company is a leader in key
segments of health care through its foundational businesses and is
creating new sources of value by expanding into next generation
care delivery and health services, with a goal of improving
satisfaction levels for both providers and consumers. The Company
believes its integrated health care model increases access to
quality care, delivers better health outcomes and lowers overall
health care costs.
The Company has four reportable segments: Health Care Benefits,
Health Services, Pharmacy & Consumer Wellness and
Corporate/Other, which are described below.
Health Care Benefits Segment
The Health Care Benefits segment operates as one of the nation’s
leading diversified health care benefits providers. The Health Care
Benefits segment has the information and resources to help members,
in consultation with their health care professionals, make more
informed decisions about their health care. The Health Care
Benefits segment offers a broad range of traditional, voluntary and
consumer-directed health insurance products and related services,
including medical, pharmacy, dental and behavioral health plans,
medical management capabilities, Medicare Advantage and Medicare
Supplement plans, PDPs and Medicaid health care management
services. The Health Care Benefits segment’s customers include
employer groups, individuals, college students, part-time and
hourly workers, health plans, health care providers, governmental
units, government-sponsored plans, labor groups and expatriates.
The Company refers to insurance products (where it assumes all or a
majority of the risk for medical and dental care costs) as
“Insured” and administrative services contract products (where the
plan sponsor assumes all or a majority of the risk for medical and
dental care costs) as “ASC.” In addition, effective January 2022,
the Company entered the individual public health insurance
exchanges (“Public Exchanges”) in eight states through which it
sells Insured plans directly to individual consumers. The Company
entered Public Exchanges in four additional states effective
January 2023.
Health Services Segment
The Health Services segment provides a full range of pharmacy
benefit management (“PBM”) solutions, delivers health care services
in its medical clinics, virtually, and in the home, and offers
provider enablement solutions. PBM solutions include plan design
offerings and administration, formulary management, retail pharmacy
network management services, and specialty and mail order pharmacy
services. In addition, the Company provides clinical services,
disease management services, medical spend management and pharmacy
and/or other administrative services for providers and federal 340B
drug pricing program covered entities (“Covered Entities”). The
Company operates a group purchasing organization that negotiates
pricing for the purchase of pharmaceuticals and rebates with
pharmaceutical manufacturers on behalf of its participants and
provides various administrative, management and reporting services
to pharmaceutical manufacturers. The Health Services segment’s
clients are primarily employers, insurance companies, unions,
government employee groups, health plans, PDPs, Medicaid managed
care plans, plans offered on Public Exchanges and private health
insurance exchanges, other sponsors of health benefit plans
throughout the United States and Covered Entities.
Pharmacy & Consumer Wellness Segment
The Pharmacy & Consumer Wellness segment dispenses
prescriptions in its retail pharmacies and through its infusion
operations, provides ancillary pharmacy services including pharmacy
patient care programs, diagnostic testing and vaccination
administration, and sells a wide assortment of health and wellness
products and general merchandise. The segment also conducts
long-term care pharmacy (“LTC”) operations, which distribute
prescription drugs and provide related pharmacy consulting and
ancillary services to long-term care facilities and other care
settings, and provides pharmacy fulfillment services to support the
Health Services segment’s specialty and mail order pharmacy
offerings. As of March 31, 2023, the Pharmacy & Consumer
Wellness segment operated more than 9,000 retail locations, as well
as online retail pharmacy websites, LTC pharmacies and on-site
pharmacies, retail specialty pharmacy stores, compounding
pharmacies and branches for infusion and enteral nutrition
services.
Corporate/Other Segment
The Company presents the remainder of its financial results in the
Corporate/Other segment, which primarily consists of:
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Management and administrative expenses to support the Company’s
overall operations, which include certain aspects of executive
management and the corporate relations, legal, compliance, human
resources, information technology and finance departments, expenses
associated with the Company’s investments in its transformation and
enterprise modernization programs and acquisition-related
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Products for which the Company no longer solicits or accepts new
customers such as its large case pensions and long-term care
insurance products. |
CVS Health Corporation is a Delaware corporation. Our corporate
office is located at One CVS Drive, Woonsocket, Rhode Island 02895,
telephone (401) 765-1500. Our common stock is listed on the New
York Stock Exchange under the trading symbol “CVS”. General
information about CVS Health is available through our website at
https://www.cvshealth.com. Our financial press releases and
filings with the SEC are available free of charge within the
Investors section of our website at
https://investors.cvshealth.com. Our website and the
information contained therein or connected thereto shall not be
deemed to be incorporated into this prospectus.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document
that we file with the SEC from the SEC website at
https://www.sec.gov, which contains reports, proxy and
information statements, and other information regarding issuers
that file electronically with the SEC. Interested persons can
electronically access our SEC filings, including the Registration
Statement and the exhibits and schedules to the Registration
Statement, at the SEC website. In addition, you can inspect and
copy our reports, proxy statements and other information at the
offices of the New York Stock Exchange, 11 Wall Street, New York,
New York 10005.
The SEC allows us to “incorporate by reference” the information we
file with them, which means that we can disclose important
information to you by referring you to those documents. The
information incorporated by reference is an important part of this
prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate
by reference the documents listed below and all documents we file
pursuant to Section 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), on or after
the date of this prospectus (including all documents we so file
after the date of this Registration Statement and prior to the
effectiveness of this Registration Statement) and prior to the
termination of the offering under this prospectus and any
prospectus supplement (other than, in each case, documents or
information deemed to have been furnished and not filed in
accordance with SEC rules), on or after the date of this prospectus
until we complete our offerings of the securities registered under
this Registration Statement:
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Annual Report on
Form 10-K for the fiscal year ended December 31,
2022, filed with the SEC on February 8, 2023, except to the extent
superseded by our Current Report on
Form 8-K filed on May 25, 2023, relating to the realigned
composition of our segments; |
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Quarterly Report on
Form 10-Q for the fiscal quarter ended March 31,
2023, filed with the SEC on May 3, 2023; |
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Current Reports on Form 8-K filed with the SEC on
January 23, 2023 (Item 5.02 only), February 8,
2023 (Item 1.01 related to the acquisition of Oak Street
Health, Inc. (“Oak Street Health”) only; SEC Accession No.
0000947871-23-000139),
February 15, 2023,
February 21, 2023,
May 2, 2023,
May 24, 2023 and
May 25, 2023;
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Definitive Proxy Statement on Schedule
14A,
filed with the SEC on April 7, 2023 (as to the information under
the headings “Committees of the Board,” “Code of Conduct,” “Audit
Committee Report,” “Biographies of our Incumbent Board Nominees,”
“Share Ownership of Directors and Certain Executive Officers,”
“Share Ownership of Principal Stockholders,” “Item 1: Election
of Directors,” “Item 2: Ratification of the Appointment of Our
Independent Registered Public Accounting Firm for 2023,”
“Independence Determinations for Directors,” “Related Person
Transaction Policy,” “Non-Employee Director Compensation”
and “Executive Compensation and Related Matters” (including “Letter
from the Management Planning and Development Committee,”
“Compensation Committee Report,” “Compensation Discussion and
Analysis,” “Compensation of Named Executive Officers,” “CEO Pay
Ratio” and “Pay Versus Performance”)). |
You may request a copy of any or all of the documents incorporated
by reference into this prospectus at no cost, by writing or
telephoning us at the following address:
Larry McGrath
Senior Vice President, Business Development and Investor
Relations
CVS Health Corporation
One CVS Drive—MC 1008
Woonsocket, Rhode Island 02895
(800) 201-0938
investorinfo@cvshealth.com
CAUTIONARY STATEMENT
CONCERNING FORWARD-LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 (the
“Reform Act”) provides a “safe harbor” for forward-looking
statements, so long as (1) those statements are identified as
forward-looking, and (2) the statements are accompanied by
meaningful cautionary statements that identify important factors
that could cause actual results to differ materially from those
discussed in the statement. We want to take advantage of these safe
harbor provisions.
Certain information contained in this prospectus, prospectus
supplements to this prospectus, and the documents incorporated by
reference or deemed to be incorporated by reference herein and
therein is forward-looking within the meaning of the Reform Act or
SEC rules. In addition, throughout this prospectus, prospectus
supplements to this prospectus, and the documents incorporated by
reference or deemed to be incorporated by reference herein and
therein and our other reports and communications, we use the
following words or variations or negatives of these words and
similar expressions when we intend to identify forward-looking
statements:
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Anticipates |
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Believes |
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Can |
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Continue |
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Could |
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Estimates |
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Evaluate |
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Expects |
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Explore |
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Forecast |
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Guidance |
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Intends |
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Likely |
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Might |
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Outlook |
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Plans |
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Potential |
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Predict |
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Probable |
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Projects |
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Seeks |
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Should |
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View |
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Will |
All statements addressing the future operating performance of
CVS Health or any segment or any subsidiary and/or future events or
developments, including statements relating to the impact of
COVID-19 and any new variants or viruses on the Company’s
businesses, investment portfolio, operating results, cash flows
and/or financial condition; statements relating to corporate
strategy, statements relating to future revenue, operating income
or adjusted operating income, earnings per share or adjusted
earnings per share, Health Care Benefits segment business, sales
results and/or trends, medical cost trends, medical membership,
Medicare Part D membership, medical benefit ratios and/or
operations, Health Services segment business, sales results and/or
trends and/or operations, Pharmacy & Consumer Wellness segment
business, sales results and/or trends and/or operations,
incremental investment spending, interest expense, effective tax
rate, weighted-average share count, cash flow from operations, net
capital expenditures, cash available for debt repayment, statements
related to possible, proposed, pending or completed acquisitions,
joint ventures, investments or combinations that involve, among
other things, the timing or likelihood of receipt of regulatory
approvals, the timing of completion, integration synergies, net
synergies and integration risks and other costs, including those
related to CVS Health’s acquisitions of Signify Health, Inc. and
Oak Street Health, enterprise modernization, transformation,
leverage ratio, cash available for enhancing shareholder value,
inventory reduction, turn rate and/or loss rate, debt ratings, the
Company’s ability to attract or retain customers and clients, store
development and/or relocations, new product development, and the
impact of industry and regulatory developments as well as
statements expressing optimism or pessimism about future operating
results or events, are forward-looking statements within the
meaning of the Reform Act.
Forward-looking statements rely on a number of estimates,
assumptions and projections concerning future events, and are
subject to a number of significant risks and uncertainties and
other factors that could cause actual results to differ materially
from those statements. Many of these risks and uncertainties and
other factors are outside our control. Certain of these risks and
uncertainties and other factors are described under
“Risk
Factors” included in
Part I, Item 1A of our Annual Report on Form 10-K for the fiscal
year ended December 31, 2022 and/or under “Risk Factors”
included in
Part II, Item 1A of our Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2023, each incorporated by reference
herein and any updates thereto in our subsequent SEC filings; these
are not the only risks and uncertainties we face. There can be no
assurance that the Company has identified all the risks that may
affect it. Additional risks and uncertainties not presently known
to the Company or that the Company currently believes to be
immaterial also may adversely affect the Company’s businesses. If
any of those risks or uncertainties develops into actual events,
those events or circumstances could have a material adverse effect
on the Company’s businesses, operating results, cash flows,
financial condition and/or stock price, among other
effects.
You should not put undue reliance on forward-looking statements.
Any forward-looking statement speaks only as of the date of this
prospectus, prospectus supplements to this prospectus, and the
documents incorporated by reference or deemed to be incorporated by
reference herein and therein, and we disclaim any intention or
obligation to update or revise forward-looking statements, whether
as a result of new information, future events, uncertainties or
otherwise.
USE OF
PROCEEDS
Unless otherwise specified in a prospectus supplement accompanying
this prospectus, the net proceeds from the sale of the debt
securities to which this prospectus relates will be used for
general corporate purposes.
DESCRIPTION
OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of
the debt securities. The debt securities will be either senior debt
securities or subordinated debt securities. The debt securities
will be issued under the Senior Indenture, dated as of
August 15, 2006 (the “senior indenture”), or the Subordinated
Indenture, dated as of May 25, 2007 (the “subordinated indenture”
and, together with the senior indenture, the “indentures”), each
between us and The Bank of New York Mellon Trust Company, N.A.
(formerly known as The Bank of New York Trust Company, N.A.), a
national banking association, as trustee. Each of the senior
indenture and the subordinated indenture is referred to as an
indenture. When we offer to sell a particular series of debt
securities, we will describe the specific terms for the securities
in a supplement to this prospectus. The prospectus supplement will
also indicate whether the general terms and provisions described in
this prospectus apply to a particular series of debt
securities.
We have summarized certain terms and provisions of the indentures.
The summary is not complete and the terms and provisions of the
indentures summarized herein may be modified by adding or removing
covenants, events of default or other provisions as reflected in
the relevant prospectus supplement for each particular series of
debt securities. The indentures have been incorporated by reference
as exhibits to the Registration Statement for these securities that
we have filed with the SEC. You should read the indentures for the
provisions which may be important to you. The indentures are
subject to and governed by the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”).
The indentures will not limit the amount of debt securities which
we may issue. We may issue debt securities up to such an aggregate
principal amount as we may authorize from time to time. The
prospectus supplement will describe the terms of any debt
securities being offered, including:
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classification as senior or subordinated debt
securities; |
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ranking of the specific series of debt securities relative to other
outstanding indebtedness, including subsidiaries’ debt; |
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if the debt securities are subordinated, the aggregate amount of
outstanding indebtedness, as of a recent date, that is senior to
the subordinated securities, and any limitation on the issuance of
additional senior indebtedness; |
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the designation, aggregate principal amount and authorized
denominations; |
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the interest rate, if any, and the method for calculating the
interest rate; |
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the interest payment dates and the record dates for the interest
payments; |
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any mandatory or optional redemption terms or prepayment,
conversion, sinking fund or exchangeability or convertibility
provisions; |
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the place where we will pay principal and interest; |
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if other than denominations of $1,000 or multiples of $1,000, the
denominations the debt securities will be issued in; |
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the applicability of and additional provisions, if any, relating to
the defeasance of the debt securities; |
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the currency or currencies, if other than the currency of the
United States, in which principal and interest will be
paid; |
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any United States federal income tax consequences; |
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the dates on which premium, if any, will be paid; |
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our right, if any, to defer the payment of interest and the maximum
length of this deferral period; |
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any listing on a securities exchange; |
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the initial public offering price; and |
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other specific terms, including any additional events of default or
covenants. |
Senior Debt
Senior debt securities will rank equally and pari passu with all
other unsecured and unsubordinated debt of CVS Health.
Subordinated Debt
Subordinated debt securities will be subordinate and junior in
right of payment, to the extent and in the manner set forth in the
subordinated indenture, to all “senior indebtedness” (as defined in
the subordinated indenture) of CVS Health. See the subordinated
indenture, section 1.01.
In general, the holders of all senior indebtedness are first
entitled to receive payment of the full amount unpaid on senior
indebtedness before the holders of any of the subordinated debt
securities or coupons are entitled to receive a payment on account
of the principal or interest on the subordinated debt securities in
certain events. These events include:
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any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings which
concern CVS Health or a substantial part of its property;
or |
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a default having occurred for the payment of principal, premium, if
any, or interest on or other monetary amounts due and payable on
any senior indebtedness or any other default having occurred
concerning any senior indebtedness, which permits the holder or
holders of any senior indebtedness to accelerate the maturity of
any senior indebtedness with notice or lapse of time, or both. Such
an event of default must have continued beyond the period of grace,
if any, provided for such event of default, and such an event of
default shall not have been cured or waived or shall not have
ceased to exist. |
If this prospectus is being delivered in connection with a series
of subordinated debt securities, the accompanying prospectus
supplement or the information incorporated in this prospectus by
reference will set forth the approximate amount of senior
indebtedness outstanding as of the end of the most recent fiscal
quarter.
Certain Covenants
Restrictions on Secured Funded Debt. The senior indenture
provides that we will not, nor will we permit any Restricted
Subsidiary to, incur, issue, assume, guarantee or create any
Secured Debt, without effectively providing concurrently with the
incurrence, issuance, assumption, guaranty or creation of any such
Secured Debt that the debt securities (together with, if we shall
so determine, any other of our Indebtedness or such Restricted
Subsidiary’s Indebtedness then existing or thereafter created which
is not subordinated to the debt securities) will be secured equally
and ratably with (or prior to) such Secured Debt, unless, after
giving effect thereto, the sum of the aggregate amount of all of
our outstanding Secured Debt and the outstanding Secured Debt of
our Restricted Subsidiaries together with all Attributable Debt in
respect of sale and leaseback transactions relating to a Principal
Property (with the exception of Attributable Debt which is excluded
pursuant to clauses (1) to (8) under “Limitation on
Sale/Leaseback Transactions” below), would not exceed 15% of
Consolidated Net Tangible Assets.
This restriction will not apply to, and there will be excluded from
Secured Debt in any computation under this restriction and under
“Limitation on Sale/Leaseback Transactions” below, Indebtedness,
secured by:
(1) Liens on property, shares of capital stock or Indebtedness of
any corporation existing at the time such corporation becomes a
Subsidiary;
(2) Liens on property, shares of capital stock or Indebtedness
existing at the time of acquisition thereof or incurred within
360 days of the time of acquisition thereof (including,
without limitation, acquisition through merger or consolidation) by
us or any Restricted Subsidiary;
(3) Liens on property, shares of capital stock or Indebtedness
thereafter acquired (or constructed) by us or any Restricted
Subsidiary and created prior to, at the time of, or within
360 days (or thereafter if such Lien is created pursuant to a
binding commitment entered into prior to, at the time of or within
360 days) after such acquisition (including, without
limitation, acquisition through merger or consolidation) (or the
completion of such construction or commencement of commercial
operation of such property, whichever is later) to secure or
provide for the payment of all or any part of the purchase price
(or the construction price) thereof;
(4) Liens in favor of us or any Restricted Subsidiary;
(5) Liens in favor of the United States of America, any State
thereof or the District of Columbia or any foreign government, or
any agency, department or other instrumentality thereof, to secure
partial, progress, advance or other payments pursuant to any
contract or provisions of any statute;
(6) Liens incurred or assumed in connection with the issuance of
revenue bonds the interest on which is exempt from federal income
taxation pursuant to Section 103 (b) of the Internal Revenue
Code;
(7) Liens securing the performance of any contract or undertaking
not directly or indirectly in connection with the borrowing of
money, the obtaining of advances or credit or the securing of
Indebtedness, if made and continuing in the ordinary course of
business;
(8) Liens incurred (no matter when created) in connection with our
or a Restricted Subsidiary’s engaging in leveraged or single
investor lease transactions; provided, however, that
the instrument creating or evidencing any borrowings secured by
such Lien will provide that such borrowings are payable solely out
of the income and proceeds of the property subject to such Lien and
are not a general obligation of ours or of such Restricted
Subsidiary;
(9) Liens in favor of a governmental agency to qualify us or any
Restricted Subsidiary to do business, maintain self-insurance or
obtain other benefits, or Liens under workers’ compensation laws,
unemployment insurance laws or similar legislation;
(10) Good faith deposits in connection with bids, tenders,
contracts or deposits to secure our or any Restricted Subsidiary’s
public or statutory obligations, or deposits of cash or obligations
of the United States of America to secure surety and appeal bonds
to which we or any Restricted Subsidiary are a party or in lieu of
such bonds, or pledges or deposits for similar purposes in the
ordinary course of business;
(11) Liens imposed by law, such as laborers’ or other employees’,
carriers’, warehousemen’s, mechanics’, materialmen’s and vendors’
Liens;
(12) Liens arising out of judgments or awards against us or any
Restricted Subsidiary with respect to which we or such Restricted
Subsidiary at the time shall be prosecuting an appeal or
proceedings for review or Liens arising out of individual final
judgments or awards in amounts of less than $1,000,000;
provided that the aggregate amount of all such individual
final judgments or awards shall not at any one time exceed
$1,000,000;
(13) Liens for taxes, assessments, governmental charges or levies
not yet subject to penalties for nonpayment or the amount or
validity of which is being in good faith contested by appropriate
proceedings by us or any Restricted Subsidiary, as the case may
be;
(14) Minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions or Liens as to the use of
real properties, which Liens, exceptions, encumbrances, easements,
reservations, rights and restrictions do not, in our opinion, in
the aggregate materially detract from the value of said properties
or materially impair their use in the operation of our business and
that of our Restricted Subsidiaries;
(15) Liens incurred to finance all or any portion of the cost of
construction, alteration or repair of any Principal Property or
improvements thereto created prior to or within 360 days (or
thereafter if such Lien is created pursuant to a binding commitment
to lend entered into prior to, at the time of, or within
360 days) after completion of such construction, alteration or
repair;
(16) Liens existing on the date of the applicable
indenture;
(17) Liens created in connection with a project financed with, and
created to secure, a Nonrecourse Obligation; or
(18) Any extension, renewal, refunding or replacement of the
foregoing, provided that (i) such extension, renewal,
refunding or replacement Lien shall be limited to all or a part of
the same property that secured the Lien extended, renewed, refunded
or replaced (plus improvements on such property) and (ii) the
Funded Debt secured by such Lien at such time is not
increased.
“Attributable Debt” means, in connection with any sale and
leaseback transaction under which either we or any Restricted
Subsidiary are at the time liable as lessee for a term of more than
12 months and at any date as of which the amount thereof is to
be determined, the lesser of (A) total net obligations of the
lessee for rental payments during the remaining term of the lease
discounted from the respective due dates thereof to such
determination date at a rate per annum equivalent to the greater of
(i) the weighted average Yield to Maturity (as defined in the
senior indenture) of the debt securities, such average being
weighted by the principal amount of each series of the debt
securities and (ii) the interest rate inherent in such lease
(as determined in good faith by us), both to be compounded
semi-annually or (B) the sale price for the assets so sold and
leased multiplied by a fraction the numerator of which is the
remaining portion of the base term of the lease included in such
transaction and the denominator of which is the base term of the
lease.
“Consolidated Net Tangible Assets” means, at any date, the total
assets appearing on our and our Restricted Subsidiaries’ most
recent consolidated balance sheet as at the end of our fiscal
quarter ending not more than 135 days prior to such date,
prepared in accordance with generally accepted accounting
principles in the United States of America (“GAAP”), less
(i) all current liabilities (due within one year) as shown on
such balance sheet, (ii) investments in and advances to
Unrestricted Subsidiaries and (iii) Intangible Assets and
liabilities relating thereto.
“Funded Debt” means (i) any of our Indebtedness or
Indebtedness of a Restricted Subsidiary maturing more than
12 months after the time of computation thereof,
(ii) guarantees of Funded Debt or of dividends of others
(except guarantees in connection with the sale or discount of
accounts receivable, trade acceptances and other paper arising in
the ordinary course of business), (iii) in the case of any
Restricted Subsidiary, all preferred stock having mandatory
redemption provisions of such Restricted Subsidiary as reflected on
such Restricted Subsidiary’s balance sheet prepared in accordance
with GAAP, and (iv) all Capital Lease Obligations (as defined
in the senior indenture).
“Indebtedness” means, at any date, without duplication, all of our
obligations for borrowed money or obligations for borrowed money of
a Restricted Subsidiary.
“Intangible Assets” means, at any date, the value, as shown on or
reflected in our and our Restricted Subsidiaries’ most recent
consolidated balance sheet as at the end of our fiscal quarter
ending not more than 135 days prior to such date, prepared in
accordance with GAAP, of: (i) all trade names, trademarks,
licenses, patents, copyrights, service marks, goodwill and other
like intangibles; (ii) organizational and development costs;
(iii) deferred charges (other than prepaid items, such as
insurance, taxes, interest, commissions, rents, pensions,
compensation and similar items and tangible assets being
amortized); and (iv) unamortized debt discount and expense,
less unamortized premium.
“Liens” means such pledges, mortgages, security interests and other
liens on any Principal Property of ours or of a Restricted
Subsidiary which secure Secured Debt.
“Nonrecourse Obligation” means indebtedness or lease payment
obligations substantially related to (i) the acquisition of
assets not previously owned by us or any Restricted Subsidiary or
(ii) the financing of a project involving the development or
expansion of our or any Restricted Subsidiary’s properties, as to
which the obligee with respect to such indebtedness or obligation
has no recourse to us or any Restricted Subsidiary or any of our or
any of our Subsidiaries’ assets other than the assets which were
acquired with the proceeds of such transaction or the project
financed with the proceeds of such transaction (and the proceeds
thereof).
“Principal Property” means real and tangible property owned and
operated now or hereafter by us or any Restricted Subsidiary
constituting a part of any store, warehouse or, distribution center
located within the United States of America or its territories or
possessions (excluding current assets, motor vehicles, mobile
materials handling equipment and other rolling stock, cash
registers and other point-of-sale recording devices and related
equipment and data processing and other office equipment), the net
book value of which (including leasehold improvements and store
fixtures constituting a part of such store, warehouse or
distribution center) as of the date on which the determination is
being made is more than 1.0% of Consolidated Net Tangible Assets.
As of the date of this prospectus, none of our stores constitutes a
Principal Property.
“Restricted Subsidiary” means each Subsidiary other than
Unrestricted Subsidiaries.
“Secured Debt” means Funded Debt which is secured by any pledge of,
or mortgage, security interest or other lien on any
(i) Principal Property (whether owned on the date of the
senior indenture or thereafter acquired or created),
(ii) shares of stock owned by us or a Subsidiary in a
Restricted Subsidiary or (iii) Indebtedness of a Restricted
Subsidiary.
“Subsidiary” means any corporation of which at least a majority of
the outstanding stock, which under ordinary circumstances (not
dependent upon the happening of a contingency) has voting power to
elect a majority of the board of directors of such corporation (or
similar management body), is owned directly or indirectly by us or
by one or more of our Subsidiaries, or by us and one or more
Subsidiaries.
“Unrestricted Subsidiary” means Subsidiaries designated as
Unrestricted Subsidiaries from time to time by our Board of
Directors; provided, however, that our Board of
Directors (i) will not designate as an Unrestricted Subsidiary
any of our Subsidiaries that owns any Principal Property or any
stock of a Restricted Subsidiary, (ii) will not continue the
designation of any of our Subsidiaries as an Unrestricted
Subsidiary at any time that such Subsidiary owns any Principal
Property, and (iii) will not, nor will it cause or permit any
Restricted Subsidiary to, transfer or otherwise dispose of any
Principal Property to any Unrestricted Subsidiary (unless such
Unrestricted Subsidiary will in connection therewith be
redesignated as a Restricted Subsidiary and any pledge, mortgage,
security interest or other lien arising in connection with any
Indebtedness of such Unrestricted Subsidiary so redesignated does
not extend to such Principal Property (unless the existence of such
pledge, mortgage, security interest or other lien would otherwise
be permitted under the senior indenture)).
Limitation on Sale/Leaseback Transactions. The senior
indenture provides that we will not, nor will we permit any
Restricted Subsidiary to, enter into any arrangement with any
person providing for the leasing by us or any Restricted Subsidiary
of any of our or any Restricted Subsidiary’s Principal Property
(which lease is required by GAAP to be capitalized on the balance
sheet of such lessee), which Principal Property has been or is to
be sold or transferred by us or such Restricted Subsidiary to such
person (a “sale and leaseback transaction”) unless, after giving
effect thereto, the aggregate amount of all Attributable Debt with
respect to all such sale and leaseback transactions plus all
Secured Debt (with the exception of Funded Debt secured by Liens
which is excluded pursuant to clauses (1) to (18) under
“Restrictions on Secured Funded Debt” above) would not exceed 15%
of Consolidated Net Tangible Assets.
This covenant will not apply to, and there will be excluded from
Attributable Debt in any computation under this restriction or
under “Restrictions on Secured Funded Debt” above, Attributable
Debt with respect to any sale and leaseback transaction
if:
(1) We or a Restricted Subsidiary are permitted to create Funded
Debt secured by a Lien pursuant to clauses (1) to
(18) inclusive under “Restrictions on Secured Funded Debt”
above on the Principal Property to be leased, in an amount equal to
the Attributable Debt with respect to such sale and leaseback
transaction, without equally and ratably securing the debt
securities;
(2) The property leased pursuant to such arrangement is sold for a
price at least equal to such property’s fair market value (as
determined by our Chief Executive Officer, President, Chief
Financial Officer, Treasurer or Controller) and we or a Restricted
Subsidiary, within 360 days after the sale or transfer shall
have been made by us or a Restricted Subsidiary, shall apply the
proceeds thereof to the retirement of our or any Restricted
Subsidiary’s Indebtedness or Funded Debt (other than Indebtedness
or Funded Debt owned by us or any Restricted Subsidiary);
provided, however, that no retirement referred to in
this clause (2) may be effected by payment at maturity or
pursuant to any mandatory sinking fund payment provision of
Indebtedness or Funded Debt;
(3) We or a Restricted Subsidiary apply the net proceeds of the
sale or transfer of the Principal Property leased pursuant to such
transaction to the purchase of assets (and the cost of construction
thereof) within 360 days prior or subsequent to such sale or
transfer;
(4) The effective date of any such arrangement or the purchaser’s
commitment therefor is within 36 months prior or subsequent to
the acquisition of the Principal Property (including, without
limitation, acquisition by merger or consolidation) or the
completion of construction and commencement of operation thereof
(which, in the case of a retail store, is the date of opening to
the public), whichever is later;
(5) The lease in such sale and leaseback transaction is for a term,
including renewals, of not more than three years;
(6) The sale and leaseback transaction is entered into between us
and a Restricted Subsidiary or between Restricted
Subsidiaries;
(7) The lease secures or relates to industrial revenue or pollution
control bonds; or
(8) The lease payment is created in connection with a project
financed with, and such obligation constitutes, a Nonrecourse
Obligation.
Merger, Consolidation and Disposition of Assets
Each indenture provides that we shall not consolidate with, merge
with or into, or sell, convey, transfer, lease or otherwise dispose
of all or substantially all of our property and assets (as an
entirety or substantially as an entirety in one transaction or a
series of related transactions) to, any Person (as defined in the
indentures) (other than a consolidation with or merger with or into
a Restricted Subsidiary or a sale, conveyance, transfer, lease or
other disposition to a Restricted Subsidiary) or permit any Person
to merge with or into us unless: (a) either (i) we shall
be the continuing Person or (ii) the Person (if other than us)
formed by such consolidation or into which we are merged or that
acquired or leased such of our property and assets shall be a
corporation organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall
expressly assume, by a supplemental indenture, executed and
delivered to the trustee, all of our obligations under each series
of the debt securities and the indenture, and we shall have
delivered to the trustee an opinion of counsel stating that such
consolidation, merger or transfer and such supplemental indenture
complies with this provision and that all conditions precedent
provided for in the indenture relating to such transaction have
been complied with and that such supplemental indenture constitutes
an obligation that is legal, valid and binding for us or such
successor enforceable against such entity in accordance with its
terms, subject to customary exceptions; and (b) we shall have
delivered to the trustee an officers’ certificate to the effect
that immediately after giving effect to such transaction, no
Default (as defined in the indentures) shall have occurred and be
continuing and an opinion of counsel as to the matters set forth in
paragraph (a) above.
The indentures do not restrict, or require us to redeem or permit
holders of any series of the debt securities to cause a redemption
of the debt securities of that series in the event of, (i) a
consolidation, merger, sale of assets or other similar transaction
that may adversely affect our creditworthiness or the
creditworthiness of our successor or combined entity, (ii) a
change in control of the Company or (iii) a highly leveraged
transaction involving us, whether or not involving a change in
control. Accordingly, the holders of the debt securities would not
have protection in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar transaction
involving us that may adversely affect the holders of debt
securities. The existing protective covenants applicable to the
debt securities would continue to apply to us, or our successor, in
the event of such a transaction initiated or supported by us, our
management, or any of our affiliates or their management, but may
not prevent such a transaction from taking place.
Events of Default, Waiver and Notice
“Event of Default” with respect to a series of senior debt
securities is defined in the senior indenture to be if:
(1) We default in the payment of all or any part of the principal
of such series of the debt securities when the same becomes due and
payable at maturity, upon acceleration, redemption or mandatory
repurchase, including as a sinking fund installment, or
otherwise;
(2) We default in the payment of any interest on such series of the
debt securities when the same becomes due and payable, and such
default continues for a period of 30 days;
(3) We default in the performance of or breach any of our other
covenants or agreements in the senior indenture and such default or
breach continues for a period of 60 consecutive days after written
notice thereof has been given to us by the trustee or to us and the
trustee by the holders of 25% or more in aggregate principal amount
of the affected series of the debt securities;
(4) An involuntary case or other proceeding shall be commenced
against us with respect to us or our debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect seeking
the appointment of a trustee, receiver, liquidator, custodian or
other similar official or for any substantial part of our property
and assets, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an
order for relief shall be entered against us under any bankruptcy,
insolvency or other similar law now or hereafter in
effect;
(5) We (i) commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an
involuntary case under any such law, (ii) consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
us or for all or substantially all of our property and assets or
(iii) effect any general assignment for the benefit of
creditors;
(6) An event of default as defined in any one or more indentures or
instruments evidencing or under which we have at the date of the
senior indenture or shall thereafter have outstanding an aggregate
of at least $50,000,000 aggregate principal amount of indebtedness
for borrowed money, shall happen and be continuing and such
indebtedness shall have been accelerated so that the same shall be
or become due and payable prior to the date on which the same would
otherwise have become due and payable, and such acceleration shall
not be rescinded or annulled within ten days after notice
thereof shall have been given to us by the trustee (if such event
be known to it), or to us and the trustee by the holders of at
least 25% in aggregate principal amount of the outstanding debt
securities of such series; provided that if such event of
default under such indentures or instruments shall be remedied or
cured by us or waived by the holders of such indebtedness, then the
Event of Default under the senior indenture by reason thereof shall
be deemed likewise to have been thereupon remedied, cured or waived
without further action upon the part of either the trustee or any
of the holders of such series; or
(7) Failure by us to make any payment at maturity, including any
applicable grace period, in respect of at least $50,000,000
aggregate principal amount of indebtedness for borrowed money and
such failure shall have continued for a period of ten days
after notice thereof shall have been given to us by the trustee (if
such event be known to it), or to us and the trustee by the holders
of at least 25% in aggregate principal amount of the outstanding
debt securities of such series; provided that if such
failure shall be remedied or cured by us or waived by the holders
of such indebtedness, then the Event of Default under the senior
indenture by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the
part of either the trustee or any of the holders of such
series.
“Event of Default” with respect to a series of subordinated debt
securities is defined in the subordinated indenture to include the
events described in clauses (1), (2), (4) and
(5) above.
If an Event of Default occurs and is continuing with respect to a
series of the debt securities, then, and in each and every such
case, either the trustee or the holders of not less than 25% in
aggregate principal amount of the outstanding debt securities of
such series by notice in writing to us (and to the trustee if given
by holders), may declare the entire outstanding principal amount of
the debt securities of such series, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and
payable.
If an Event of Default described in clauses (4) or
(5) occurs and is continuing with respect to a series of the
debt securities, then the principal amount of all the debt
securities of such series then outstanding and interest accrued
thereon, if any, shall be and become immediately due and payable,
without any notice or other action by any holder of debt securities
of such series or the trustee to the full extent permitted by
applicable law.
Subject to provisions in the applicable indenture for the
indemnification of the trustee and certain other limitations, the
holders of at least a majority in aggregate 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 trustee or exercising any trust or power conferred
on the trustee by the indenture with respect to the debt securities
of such series; provided that the trustee may refuse to
follow any direction that conflicts with law or the indenture, that
may involve the trustee in personal liability, or that the trustee
determines in good faith may be unduly prejudicial to the rights of
holders of the debt securities of such series not joining in the
giving of such direction; and provided further that the
trustee may take any other action it deems proper that is not
inconsistent with any directions received from holders of debt
securities of such series pursuant to this paragraph.
Subject to various provisions in the applicable indenture, the
holders of at least a majority in principal amount of the
outstanding debt securities of any series, by notice to the
trustee, may waive an existing Default or Event of Default with
respect to such series and its consequences, except a Default in
the payment of principal of or interest on any debt security of
such series as specified in clauses (1) or (2) of the
first paragraph of this section or in respect of a covenant or
provision of the indenture which cannot be modified or amended
without the consent of the holder of each outstanding debt security
of such series affected. Upon any such waiver, such Default shall
cease to exist with respect to such series, and any Event of
Default arising therefrom shall be deemed to have been cured, for
every purpose of the indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any
right consequent thereto.
Each indenture provides that no holder of debt securities of any
series may institute any proceeding, judicial or otherwise, with
respect to the indenture or the debt securities of such series, or
for the appointment of a receiver or trustee, or for any other
remedy under the indenture, unless: (i) such holder has
previously given to the trustee written notice of a continuing
Event of Default; (ii) the holders of at least 25% in
aggregate principal amount of outstanding debt securities of such
series shall have made written request to the trustee to institute
proceedings in respect of such Event of Default in its own name as
trustee under the indenture; (iii) such holder or holders have
offered to the trustee indemnity reasonably satisfactory to the
trustee against any costs, liabilities or expenses to be incurred
in compliance with such request; (iv) the trustee for
60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(v) during such 60-day period, the holders of a majority in
aggregate principal amount of the outstanding debt securities of
such series have not given the trustee a direction that is
inconsistent with such written request. A holder of debt securities
of any series may not use the indenture to prejudice the rights of
another holder of such series or to obtain a preference or priority
over such other holder.
Information
Each indenture provides that we shall file with the trustee and
transmit to holders of the debt securities such information,
documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the time and in the
manner provided pursuant to such Act.
The Company will be required to file with the trustee annually,
within four months of the end of each fiscal year of the
Company, a certificate as to the compliance with all conditions and
covenants of each indenture.
Discharge and Defeasance of Debt Securities and
Covenants
Each indenture provides that we may terminate our obligations under
any series of debt securities if: (i) all debt securities of
such series previously authenticated and delivered, with certain
exceptions, have been delivered to the trustee for cancellation and
we have paid all sums payable by us with respect to that series of
debt securities under the indenture; or (ii) (a) the debt
securities of such series mature within one year or all of them are
to be called for redemption within one year under arrangements
satisfactory to the trustee for giving the notice of redemption,
(b) we irrevocably deposit in trust with the trustee, as trust
funds solely for the benefit of the holders of the debt securities
of such series for that purpose, money or U.S. government
obligations or a combination thereof sufficient (unless such funds
consist solely of money, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the trustee), without
consideration of any reinvestment, to pay the principal of and
interest on the debt securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable
by us under the indenture, and (c) we deliver to the trustee
an officers’ certificate and an opinion of counsel, in each case
stating that all conditions precedent provided for in the indenture
relating to the satisfaction and discharge of our obligations under
the indenture with respect to the debt securities of such series
have been complied with.
The following obligations will survive until the debt securities of
such series are no longer outstanding: our obligations to execute
and deliver the debt securities of such series for authentication,
to set the terms of the debt securities of such series, to maintain
an office or agency in respect of the debt securities of such
series, to have moneys held for payment in trust, to register the
transfer or exchange of the debt securities of such series, to
compensate and indemnify the trustee and to appoint a successor
trustee, and our right to recover excess money held by the trustee.
Thereafter, only our obligations to compensate and indemnify the
trustee, and our right to recover excess money held by the trustee
shall survive.
Each indenture provides that we (i) will be deemed to have
paid and will be discharged from any and all obligations in respect
of the debt securities of such series, and the provisions of the
indenture will, except as noted below, no longer be in effect with
respect to the debt securities of such series (“legal defeasance”)
or (ii) may omit to comply with other specific covenants
relating to the debt securities of such series in the indenture,
and with respect to the senior indenture, such omission shall be
deemed not to be an Event of Default under clause (3) of the
first paragraph of “Events of Default, Waiver and Notice”
(“covenant defeasance”); provided that the following
conditions shall have been satisfied: (a) we have irrevocably
deposited in trust with the trustee as trust funds solely for the
benefit of the holders of the debt securities of such series, for
payment of the principal of and interest on the debt securities of
such series, money or U.S. government obligations or a combination
thereof sufficient (unless such funds consist solely of money, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the trustee) without consideration of any reinvestment and after
payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the trustee, to pay and
discharge the principal of and accrued interest on the outstanding
debt securities of such series to maturity or earlier redemption
(irrevocably provided for under arrangements satisfactory to the
trustee), as the case may be; (b) such deposit will not result
in a breach or violation of, or constitute a default under, the
indenture or any other material agreement or instrument to which we
are a party or by which we are bound; (c) no Default with
respect to the debt securities of such series shall have occurred
and be continuing on the date of such deposit; (d) we shall
have delivered to the trustee an opinion of counsel that
(1) the holders of the debt securities of such series will not
recognize income, gain or loss for federal income tax purposes as a
result of our exercise of our option under this provision of the
indenture and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred and
(2) the holders of the debt securities of such series have a
valid security interest in the trust funds, and (e) we have
delivered to the trustee an officers’ certificate and an opinion of
counsel, in each case stating that all conditions precedent
provided for in the indenture relating to the defeasance
contemplated have been complied with. In the case of legal
defeasance under clause (i) above, the opinion of counsel
referred to in clause (d) (1) above may be replaced by a
ruling directed to the trustee received from the Internal Revenue
Service to the same effect. Notwithstanding legal or covenant
defeasance, the following obligations will survive until the debt
securities of such series are no longer outstanding: our
obligations to execute and deliver the debt securities of such
series for authentication, to set the terms of the debt securities
of such series, to maintain an office or agency in respect of the
debt securities of such series, to have moneys held for payment in
trust, to register the transfer or exchange of the debt securities
of such series, to compensate and indemnify the trustee and to
appoint a successor trustee, and our right to recover excess money
held by the trustee. Thereafter, only our obligations to compensate
and indemnify the trustee, and our right to recover excess money
held by the trustee shall survive.
Modification and Waiver
Each indenture provides that we and the trustee may amend or
supplement the indenture or any series of the debt securities
without notice to or the consent of any holder of such
series:
(1) to cure any ambiguity, defect or inconsistency in the
indenture; provided that such amendments or supplements
shall not materially and adversely affect the interests of the
holders of debt securities of such series;
(2) to provide for the assumption of our obligations to the holders
of the debt securities of such series in connection with a
consolidation or merger of our company or the sale, conveyance,
transfer, lease or other disposal of all or substantially all of
our property and assets;
(3) to comply with any requirements of the SEC in connection with
the qualification of the indenture under the Trust Indenture
Act;
(4) to evidence and provide for the acceptance of appointment under
the indenture by a successor trustee; and
(5) to make any change that does not materially and adversely
affect the rights of any holder of debt securities of such series,
provided that any change to conform the terms of the debt
securities to the indenture and to the Description of Debt
Securities contained in this prospectus or prospectus supplement
relating to the debt securities shall not be deemed to be adverse
to any holder of such debt securities.
Each indenture also contains provisions whereby we and the trustee,
subject to certain conditions, may amend the indenture and the
outstanding debt securities of such series with the written consent
of the holders of a majority in principal amount of the debt
securities of such series then outstanding, and the holders of a
majority in principal amount of the outstanding debt securities of
any series may waive future compliance by us with any provision of
the indenture or the debt securities of such series.
Notwithstanding the foregoing provisions, each indenture provides
that, without the consent of each holder of a series of the debt
securities affected thereby, an amendment or waiver may
not:
(1) extend the stated maturity of the principal of, or any
installment of interest on, such holder’s debt securities, or
reduce the principal thereof or the rate of interest thereon, or
any premium payable with respect thereto, or change any place or
currency of payment where any debt security of that series or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the due date therefor;
(2) reduce the percentage in principal amount of outstanding debt
securities of that series the consent of whose holders is required
for any such supplemental indenture, for any waiver of compliance
with certain provisions of the indenture or certain Defaults and
their consequences provided for in the indenture;
(3) waive a Default in the payment of principal of or interest on
any debt security of that series of such holder; or
(4) modify any of the provisions of this provision of the
indenture, except to increase any such percentage or to provide
that certain other provisions of the indenture cannot be modified
or waived without the consent of the holder of each outstanding
debt security of that series thereunder affected
thereby.
It shall not be necessary for the consent of any holder under this
provision of the applicable indenture to approve the particular
form of any proposed amendment, supplement or waiver, but it shall
be sufficient if such consent approves the substance thereof. After
an amendment, supplement or waiver under this section of the
applicable indenture becomes effective, we shall give to the
holders of the series of the debt securities affected thereby a
notice briefly describing the amendment, supplement or waiver. Any
failure by us to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture or waiver.
Governing Law
Each indenture and the debt securities will be governed by the laws
of the State of New York.
The Trustee
We maintain ordinary banking and trust relationships with The Bank
of New York Mellon Trust Company, N.A. (formerly known as The Bank
of New York Trust Company, N.A.), a national banking association,
and its affiliates.
FORMS OF
SECURITIES
We will issue the debt securities in the form of one or more fully
global securities that will be deposited with a depositary or its
custodian identified in the applicable prospectus supplement and
registered in the name of that depositary or its nominee. One or
more global securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate
principal or face amount of the securities to be represented by
global securities. Unless and until it is exchanged in whole for
securities in definitive registered form, a global security may not
be transferred except as a whole by and among the depositary for
the global security, the nominees of the depositary or any
successors of the depositary or those nominees.
If not described below, any specific terms of the depositary
arrangement with respect to any securities to be represented by a
global security will be described in the prospectus supplement
relating to those securities. We anticipate that the following
provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a global security will be
limited to persons, called participants, that have accounts with
the depositary or persons that may hold interests through
participants. Upon the issuance of a global security, the
depositary will credit, on its book-entry registration and transfer
system, the participants’ accounts with the respective principal or
face amounts of the securities beneficially owned by the
participants. Any dealers, underwriters or agents participating in
the distribution of the securities will designate the accounts to
be credited. Ownership of beneficial interests in a global security
will be shown on, and the transfer of ownership interests will be
effected only through, records maintained by the depositary, with
respect to interests of participants, and on the records of
participants, with respect to interests of persons holding through
participants. The laws of some states may require that some
purchasers of securities take physical delivery of these securities
in definitive form. These laws may impair your ability to own,
transfer or pledge beneficial interests in global
securities.
So long as the depositary, or its nominee, is the registered owner
of a global security, that depositary or its nominee, as the case
may be, will be considered the sole owner or holder of the
securities represented by the global security for all purposes
under the applicable indenture. Except as described below, owners
of beneficial interests in a global security will not be entitled
to have the securities represented by the global security
registered in their names, will not receive or be entitled to
receive physical delivery of the securities in definitive form and
will not be considered the owners or holders of the securities
under the applicable indenture. Accordingly, each person owning a
beneficial interest in a global security must rely on the
procedures of the depositary for that global security and, if that
person is not a participant, on the procedures of the participant
through which the person owns its interest, to exercise any rights
of a holder under the applicable indenture. We understand that
under existing industry practices, if we request any action of
holders or if an owner of a beneficial interest in a global
security desires to give or take any action that a holder is
entitled to give or take under the applicable indenture, the
depositary for the global security would authorize the participants
holding the relevant beneficial interests to give or take that
action, and the participants would authorize beneficial owners
owning through them to give or take that action or would otherwise
act upon the instructions of beneficial owners holding through
them.
Principal, premium, if any, and interest payments on debt
securities, represented by a global security registered in the name
of a depositary or its nominee will be made to the depositary or
its nominee, as the case may be, as the registered owner of the
global security. None of CVS Health, the trustee, or any other
agent of CVS Health or agent of the trustee will have any
responsibility or liability for any aspect of the records relating
to payments made on account of beneficial ownership interests in
the global security or for maintaining, supervising or reviewing
any records relating to those beneficial ownership
interests.
We expect that the depositary for any of the securities represented
by a global security, upon receipt of any payment of principal,
premium or interest or to holders on that global security, will
immediately credit participants’ accounts in amounts proportionate
to their respective beneficial interests in that global security as
shown on the records of the depositary. We also expect that
payments by participants to owners of beneficial interests in a
global security held through participants will be governed by
standing customer instructions and customary practices, as is now
the case with the securities held for the accounts of customers in
bearer form or registered in “street name,” and will be the
responsibility of those participants.
If the depositary for any of these securities represented by a
global security is at any time unwilling or unable to continue as
depositary or ceases to be a clearing agency registered under the
Exchange Act, and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within
90 days, we will issue securities in definitive form in
exchange for the global security that had been held by the
depositary. Any securities issued in definitive form in exchange
for a global security will be registered in the name or names that
the depositary gives to the relevant trustee, or other relevant
agent of ours or theirs. It is expected that the depositary’s
instructions will be based upon directions received by the
depositary from participants with respect to ownership of
beneficial interests in the global security that had been held by
the depositary.
VALIDITY OF
SECURITIES
The validity of the securities in respect of which this prospectus
is being delivered will be passed on for us by Shearman &
Sterling LLP.
EXPERTS
The consolidated financial statements of CVS Health Corporation for
the year ended December 31, 2022 filed with CVS Health
Corporation’s Current Report on Form 8-K dated May 25, 2023,
and the effectiveness of CVS Health Corporation’s internal control
over financial reporting as of December 31, 2022, have been
audited by Ernst & Young LLP, independent registered
public accounting firm, as set forth in their reports thereon,
included therein, and incorporated herein by reference. Such
consolidated financial statements and CVS Health Corporation
management’s assessment of the effectiveness of internal control
over financial reporting as of December 31, 2022 are
incorporated herein by reference in reliance upon such reports
given on the authority of such firm as experts in accounting and
auditing.
With respect to the unaudited condensed consolidated interim
financial information of CVS Health Corporation for the three-month
periods ended March 31, 2023 and 2022, incorporated by
reference in this prospectus, Ernst & Young LLP reported
that they have applied limited procedures in accordance with
professional standards for a review of such information. However,
their separate report dated May 3, 2023 included in CVS Health
Corporation’s Quarterly Report on Form 10-Q for the quarter ended
March 31, 2023, and incorporated by reference herein, states
that they did not audit and they do not express an opinion on that
interim financial information. Accordingly, the degree of reliance
on their report on such information should be restricted in light
of the limited nature of the review procedures applied.
Ernst & Young LLP is not subject to the liability
provisions of Section 11 of the Securities Act of 1933 (the
“Act”) for their report on the unaudited interim financial
information because that report is not a “report” or a “part” of
the Registration Statement prepared or certified by
Ernst & Young LLP within the meaning of Sections 7 and 11
of the Act.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution
The following table sets forth the costs and expenses payable by
the Registrant in connection with the sale of the securities being
registered hereby.
| |
|
|
| |
|
Amount to be Paid |
|
Registration fee |
|
$ |
* |
|
| Legal
fees and expenses (including Blue Sky fees) |
|
|
** |
|
| Trustee
fees |
|
|
** |
|
|
Accounting fees and expenses |
|
|
** |
|
|
Miscellaneous |
|
|
** |
|
|
TOTAL |
|
$ |
** |
|
| |
|
|
|
|
|
* |
Omitted because the registration fee is being deferred pursuant to
Rule 456(b). |
|
** |
These fees are calculated based on the securities offered and the
number of issuances and accordingly cannot be estimated at this
time. The applicable prospectus supplement will set forth the
estimated amount of expenses of any offering of
securities. |
Item 15. Indemnification of Directors and
Officers
Exculpation. Section 102(b)(7) of the Delaware General
Corporation Law permits a corporation to provide in its certificate
of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the director’s duty of
loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases, redemptions or
other distributions, or (iv) for any transaction from which
the director derived an improper personal benefit. The CVS Health
Corporation Amended and Restated Certificate of Incorporation, as
amended, (the “CVS Health Charter”) limits the personal liability
of a director to CVS Health and its stockholders for monetary
damages for a breach of fiduciary duty as a director to the fullest
extent permitted by law.
Indemnification. Section 145 of the Delaware General
Corporation Law provides that a corporation may indemnify directors
and officers as well as other employees and individuals against
expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person
in connection with any threatened, pending or completed actions,
suits or proceedings in which such person is made a party by reason
of such person being or having been a director, officer, employee
or agent to the Registrant. The Delaware General Corporation Law
provides that Section 145 is not exclusive of other rights to
which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors
or otherwise. Expenses, including attorneys’ fees, incurred by any
such person in defending any such action, suit or proceeding shall
be paid or reimbursed by CVS Health in advance of the final
disposition of such action, suit or proceeding upon receipt by it
of an undertaking of such person to repay such expenses if it shall
ultimately be determined that such person is not entitled to be
indemnified by CVS Health. The CVS Health Charter provides for
indemnification of directors and officers of CVS Health against
liability they may incur in their capacities as such to the fullest
extent permitted under the Delaware General Corporation
Law.
Insurance. CVS Health has in effect Directors and Officers
insurance with a limit of $500,000,000. Our Employment Practices
Liability insurance is subject to a limit of $125,000,000. The
Employment Practices Liability insurance covers actions of
directors and officers, as well as other employees of CVS
Health.
Item 16. Exhibits and Financial Statement
Schedules
(a) The list of exhibits is incorporated herein by reference to the
Exhibit Index following the signature pages.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of securities registered hereby, a post-effective amendment to
this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee”
table in the effective Registration Statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (i), (ii) and
(iii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC by
the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this
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, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the
Securities Act to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the Registration
Statement as of the date the filed prospectus was deemed part of
and included in the Registration Statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by Section 10(a)
of the Securities Act 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.
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act 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.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, CVS
Health Corporation certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Woonsocket, State of Rhode Island, on May 25,
2023.
|
|
|
|
CVS Health Corporation |
|
|
|
|
By: |
/s/ Shawn M. Guertin |
|
|
Shawn M. Guertin
Executive Vice President and Chief Financial
Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Shawn M. Guertin
as such person’s true and lawful attorney-in-fact and agent, with
full power to act separately and full power of substitution and
resubstitution, for such person and in such person’s 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 file the same, with all exhibits
thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and
perform each and every act in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or such
person’s substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates
indicated.
|
|
|
|
|
Signature
|
Title
|
Date
|
|
|
|
|
|
/s/ Fernando Aguirre
Fernando Aguirre
|
Director |
May 25, 2023 |
|
|
|
|
|
/s/ Jeffrey R. Balser, M.D., Ph.D
Jeffrey R. Balser, M.D., Ph.D
|
Director
|
May 25, 2023
|
|
|
|
|
|
/s/ C. David Brown II
C. David Brown II
|
Director |
May 25, 2023 |
|
|
|
|
|
/s/ James D. Clark
James D. Clark
|
Senior Vice President –
Controller and Chief Accounting
Officer (Principal Accounting
Officer)
|
May 25, 2023
|
|
|
|
|
|
/s/ Alecia A. DeCoudreaux
Alecia A. DeCoudreaux
|
Director |
May 25, 2023 |
|
|
|
|
|
/s/ Nancy-Ann M. DeParle
Nancy-Ann M. DeParle
|
Director |
May 25, 2023 |
|
|
|
|
|
/s/ Roger N. Farah
Roger N. Farah
|
Director |
May 25, 2023 |
|
|
|
|
|
/s/ Anne M. Finucane
Anne M. Finucane
|
Director |
May 25, 2023 |
|
/s/ Shawn M. Guertin
Shawn M. Guertin
|
Executive Vice President and Chief
Financial Officer (Principal Financial Officer)
|
May 25, 2023
|
|
|
|
|
|
/s/ Edward J. Ludwig
Edward J. Ludwig
|
Director |
May 25, 2023 |
|
|
|
|
|
/s/ Karen S. Lynch
Karen S. Lynch
|
President and Chief Executive
Officer (Principal Executive
Officer) and Director
|
May 25, 2023
|
|
|
|
|
|
|
|
|
|
Signature
|
Title
|
Date
|
|
/s/ Jean-Pierre Millon
Jean-Pierre Millon
|
Director |
May 25, 2023 |
| |
|
|
|
/s/ Mary L. Schapiro
Mary L. Schapiro
|
Director |
May 25, 2023 |
| |
|
|
| |
|
|
EXHIBIT INDEX
|
|
|
|
Exhibit No.
|
Document
|
|
|
|
|
1.1* |
Form of Underwriting Agreement |
|
|
|
|
4.1 |
Senior Indenture, dated as of August 15, 2006, between CVS
Health Corporation (formerly known as CVS Corporation) and The Bank
of New York Mellon Trust Company, N.A. (formerly known as The Bank
of New York Trust Company, N.A.) (incorporated by reference to
Exhibit 4.1 to CVS Health Corporation’s (formerly known as CVS
Corporation) Current Report on Form 8-K filed August 15,
2006) |
|
|
|
|
4.2 |
Form of Senior Debt Securities (included in
Exhibit 4.1) |
|
|
|
|
4.3 |
Subordinated Indenture, dated as of May 25, 2007, between CVS
Health Corporation (formerly known as CVS Caremark Corporation) and
The Bank of New York Mellon Trust Company, N.A. (formerly known as
The Bank of New York Trust Company, N.A.) (incorporated by
reference to Exhibit 4.3 to CVS Health Corporation’s (formerly
known as CVS Caremark Corporation) Registration Statement on
Form S-3 filed March 24, 2010) |
|
|
|
|
4.4 |
Form of Subordinated Debt Securities (included in
Exhibit 4.3) |
|
|
|
|
5.1** |
Opinion of Shearman & Sterling LLP |
|
|
|
|
15.1** |
Letter of Ernst & Young LLP re: Unaudited Interim Financial
Information |
|
|
|
|
23.1** |
Consent of Ernst & Young LLP |
|
|
|
|
23.3** |
Consent of Shearman & Sterling LLP (included in
Exhibit 5.1) |
|
|
|
|
24.1** |
Powers of Attorney (included on signature page of this Registration
Statement). |
|
|
|
|
25.1** |
Statement of Eligibility of The Bank of New York Mellon Trust
Company, N.A. on Form T-1 for the Senior Indenture, dated as
of August 15, 2006 |
|
|
|
|
25.2** |
Statement of Eligibility of The Bank of New York Mellon Trust
Company, N.A. on Form T-1 for the Subordinated Indenture,
dated as of May 25, 2007 |
|
|
|
|
107** |
Filing Fee Table |
|
* |
To be filed by amendment or as an exhibit to a document to be
incorporated by reference herein in connection with an offering of
the offered securities. |
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