S-3ASR
As filed with the Securities and
Exchange Commission on April 28, 2009
Registration
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
ITT CORPORATION
(Exact name of registrant as
specified in its charter)
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Indiana
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13-5158950
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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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1133 Westchester
Avenue,
White Plains, New York
10604
(914) 641-2000
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Vincent A. Maffeo
Senior Vice President and
General Counsel
1133 Westchester
Avenue,
White Plains, New York
10604
(914) 641-2000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copy to:
Gary L. Sellers
Simpson Thacher & Bartlett
LLP
425 Lexington Avenue
New York, New York
10017
(212) 455-2000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box.
þ
If this Form is a post-effective amendment to a registration
statement pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2 of the Exchange Act.
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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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(Do not check if smaller reporting
company)
CALCULATION OF REGISTRATION
FEE
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Title of Each Class of
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Amount to be
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Proposed Maximum
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Proposed Maximum
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Amount of
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Securities to be Registered
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Registered
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Offering Price Per Note
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Aggregate Offering Price
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Registration Fee
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Common Stock, $1 par value per share
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(1)
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(1)
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(1)
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(2)
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Preferred Stock
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(1)
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(1)
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(1)
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(2)
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Debt Securities
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(1)
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(1)
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(1)
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(2)
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Warrants to Purchase Debt Securities
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(1)
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(1)
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(1)
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(2)
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Units
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(1)
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(1)
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(1)
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(2)
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(1)
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Omitted pursuant to General
Instructions II.E. of Form S-3. An indeterminate amount of
common stock, debt securities, warrants to purchase debt
securities and units are being registered as may from time to
time be issued at indeterminate prices.
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(2)
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In accordance with
Rules 456(b) and 457(r), the registrant is deferring
payment of all of the registration fee. Registration fees will
be paid subsequently on a pay as you go basis.
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PROSPECTUS
ITT Corporation
Common Stock
Preferred Stock
Debt Securities
Warrants to Purchase Debt
Securities
Units
ITT Corporation may offer from time to time common stock,
preferred stock, debt securities, warrants to purchase debt
securities or units. We will provide the specific terms of the
securities in one or more supplements to this prospectus. This
prospectus may not be used to offer and sell the securities
unless accompanied by a prospectus supplement. A prospectus
supplement may add, update or change information contained in
this prospectus. You should read this prospectus and the
applicable prospectus supplement, as well as the documents
incorporated by reference in this prospectus and in any
accompanying prospectus supplement, carefully before you invest.
Investing in these securities
involves risks. See the information included and incorporated by
reference in this prospectus and the accompanying prospectus
supplement for a discussion of the factors you should carefully
consider before deciding to purchase these securities, including
the information under Risk Factors in our most
recent annual report on
Form 10-K
(as it may be updated in our most recent quarterly report on
Form 10-Q)
filed with the Securities and Exchange Commission.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is April 28, 2009
TABLE OF
CONTENTS
You should rely only on the information contained or
incorporated by reference in this prospectus and in any
accompanying prospectus supplement or in any related free
writing prospectus. We have not authorized anyone to provide you
with different information. This document may only be used where
it is legal to sell these securities. You should only assume
that the information contained or incorporated by reference in
this prospectus or in any accompanying prospectus supplement or
any related free writing prospectus is accurate as of the
respective date on the front of those documents. Our business,
financial condition, results of operations and prospects may
have changed since that date. We are not making an offer of
these securities in any jurisdiction where the offer is not
permitted.
i
ABOUT
THIS PROSPECTUS
This prospectus is part of an automatic shelf registration
statement that we filed with the Securities and Exchange
Commission, or the SEC, as a well-known seasoned
issuer as defined in Rule 405 under the Securities
Act of 1933, as amended, or the Securities Act. By using an
automatic shelf registration statement, we may, at any time and
from time to time, sell common stock, preferred stock, debt
securities, warrants to purchase debt securities and units under
this prospectus in one or more offerings in an unlimited amount.
As allowed by the SEC rules, this prospectus does not contain
all of the information included in the registration statement.
For further information, we refer to the registration statement,
including its exhibits. Statements contained in this prospectus
about the provisions or contents of any agreement or other
document are not necessarily complete. If the SECs rules
and regulations require that an agreement or document be filed
as an exhibit to the registration statement, please see that
agreement or document for a complete description of these
matters.
This prospectus provides you with a general description of the
securities we may offer. Each time we use this prospectus to
offer securities, we will provide you with a prospectus
supplement that will describe the specific amounts, prices and
terms of the securities being offered. The prospectus supplement
may also add, update or change information contained in this
prospectus. Therefore, if there is any inconsistency between the
information in this prospectus and the prospectus supplement,
you should rely on the information in the prospectus supplement.
To understand the terms of our securities, you should carefully
read this document and the applicable prospectus supplement.
Together, they provide the specific terms of the securities we
are offering. You should also read the documents we have
referred you to under Where You Can Find More
Information below for information on our company, the
risks we face and our financial statements. The registration
statement and exhibits can be read at the SECs website or
at the SEC as described under Where You Can Find More
Information.
Except as otherwise identified, references in this prospectus to
the Company, we, us and
our refer to ITT Corporation and its subsidiaries.
Trademarks and servicemarks in this prospectus and in any
accompanying prospectus supplement are the property of, or
licensed by, us or our subsidiaries.
References herein to $, dollars and
U.S. dollars are to United States dollars, and
financial data included or incorporated by reference herein have
been presented in accordance with accounting principles
generally accepted in the United States of America.
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WHERE YOU
CAN FIND MORE INFORMATION
Pursuant to the requirements of the Exchange Act of 1934, as
amended, or the Exchange Act, we file annual, quarterly and
current reports, proxy statements and other information with the
SEC. Our SEC filings are available to the public over the
Internet at the SECs website at www.sec.gov or at our
website at www.itt.com (as noted below, the information
contained in, or that can be accessed through, our website is
not a part of this prospectus or part of any prospectus
supplement). You may also read and copy any document we file
with the SEC at its public reference room at
100 F Street, N.E., Washington, D.C. 20549. In
addition, you can inspect reports and other information we file
at the office of the New York Stock Exchange, Inc.,
20 Broad Street, New York, New York 10005.
You may also obtain copies of this information at prescribed
rates by writing to the Public Reference Section of the SEC at
100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
room.
Our SEC filings are also available at the office of the New York
Stock Exchange. For further information on obtaining copies of
our public filings at the New York Stock Exchange, you should
call
(212) 656-3000.
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DOCUMENTS
INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference into
this prospectus information that we file with the SEC. This
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 any inconsistent information in this
prospectus and in our other filings with the SEC.
We incorporate by reference the following documents that we
previously filed with the SEC (other than information in such
documents that is deemed not to be filed), all of which are
filed under SEC File
No. 001-05672:
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Our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008;
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Our Quarterly Report on
Form 10-Q
for the quarterly period ended March 31, 2009;
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Our Current Reports on
Form 8-K
filed with the SEC on February 13, 2009 and March 9,
2009;
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Our Definitive Proxy Statement on Schedule 14A filed with
the SEC on March 27, 2009; and
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The description of our common stock on
Form 8-A/A
filed with the SEC on April 28, 2009.
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These documents contain important information about our business
and our financial performance.
We also incorporate by reference any future filings we make with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act, on or after the date of the filing of the
registration statement and prior to the termination of the
offering, all of which will be filed under SEC File
No. 001-05672.
Our future filings with the SEC will automatically update and
supersede any inconsistent information in this prospectus.
You may obtain a free copy of these filings from us by
telephoning or writing to us at the following address and
telephone number:
ITT Corporation
1133 Westchester Avenue
White Plains, New York 10604
Attention: Secretary
Telephone:
(914) 641-2000
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FORWARD-LOOKING
AND CAUTIONARY STATEMENTS
Some of the information included or incorporated by reference in
this prospectus and the applicable prospectus supplement contain
forward-looking statements intended to qualify for the safe
harbor from liability established by the Private Securities
Litigation Reform Act of 1995 (the Act). These
forward-looking statements include statements that describe our
business strategy, outlook, objectives, plans, intentions or
goals, and any discussion of future operating or financial
performance. Whenever used, words such as
anticipate, estimate,
expect, project, intend,
plan, believe, target and
other terms of similar meaning are intended to identify such
forward-looking statements.
Forward-looking statements are uncertain and to some extent
unpredictable, and involve known and unknown risks,
uncertainties and other important factors that could cause
actual results to differ materially from those expressed in, or
implied from, such forward-looking statements. Factors that
could cause results to differ materially from those anticipated
include:
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economic, political and social conditions in the countries in
which we conduct our businesses;
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changes in government defense budgets;
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decline in consumer spending;
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our ability to borrow or refinance our existing indebtedness and
availability of liquidity sufficient to meet our needs;
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interest and foreign currency exchange rate fluctuations;
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competition and industry capacity and production rates;
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ability of third parties, including our commercial partners,
financial institutions and insurers, to comply with their
commitments to us;
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availability of adequate labor, commodities, supplies and raw
materials;
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sales and revenues mix and pricing levels;
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acquisitions or divestitures;
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our ability to effect restructuring and cost reduction programs
and realize savings from such actions;
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government regulations and compliance therewith;
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governmental investigations;
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changes in technology;
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potential future employee benefit plan contributions and other
employment and pension matters;
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contingencies related to actual or alleged environmental
contamination, claims and concerns;
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intellectual property matters;
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personal injury claims;
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changes in generally accepted accounting principles; and
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other factors set forth in our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008 and our other
filings with the Securities and Exchange Commission.
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We undertake no obligation to update any forward-looking
statements, whether as a result of new information, future
events or otherwise.
v
THE
COMPANY
ITT Corporation is a global multi-industry leader in
high-technology engineering and manufacturing engaged directly
and through its subsidiaries. We generate revenue and cash
through the design, manufacture, and sale of a wide-range of
engineered products and the provision of services.
Our principal executive offices are located at
1133 Westchester Avenue, White Plains, New York 10604, our
telephone number is
(914) 641-2000
and our website is www.itt.com. The information contained in, or
that can be accessed through, our website is not a part of this
prospectus or any prospectus supplement.
RISK
FACTORS
Our business is subject to uncertainties and risks. You should
carefully consider and evaluate all of the information included
and incorporated by reference in this prospectus and any
accompanying prospectus supplement, including the risk factors
incorporated by reference, as well as any risk factors we may
describe in any subsequent periodic reports or information we
file with the SEC. It is possible that our business, financial
condition, liquidity or results of operations could be
materially and adversely affected by any of these risks.
USE OF
PROCEEDS
Unless we otherwise state in the applicable prospectus
supplement, we intend to use the net proceeds from the sale of
the securities for general corporate purposes. General corporate
purposes may include repayment of debt, additions to working
capital, capital expenditures, investments in our subsidiaries,
possible acquisitions and the repurchase, redemption or
retirement of securities, including shares of our common stock.
The net proceeds may be temporarily invested or applied to repay
short-term or revolving debt prior to use.
RATIOS OF
EARNINGS TO FIXED CHARGES
The following table sets forth our historical ratios of earnings
to fixed charges for the periods indicated. This information
should be read in conjunction with the consolidated financial
statements and the accompanying notes incorporated by reference
in this prospectus.
Earnings available for fixed charges consist of earnings from
continuing operations before income taxes, minority interest and
cumulative effect of accounting change(s) and fixed charges
excluding capitalized interest, net of amortization, reduced by
undistributed earnings of our less than 50% owned affiliates.
Fixed charges consist of interest expense, amortization of debt
discount and expenses and capitalized interest, plus that
portion of rental expense estimated to be the equivalent of
interest.
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Three Months
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Ended March 31,
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Year Ended December 31,
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2009
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2008
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2008
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2007
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2006
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2005
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2004
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Ratio of earnings to fixed charges
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4.22
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3.83
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4.88
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5.09
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5.36
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5.49
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6.29
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1
DESCRIPTION
OF CAPITAL STOCK
General
The following is a description of our capital stock. This
description is not complete, and we qualify this description by
referring to our restated articles of incorporation and our
amended by-laws, both of which we incorporate by reference in
this prospectus, and to the laws of the state of Indiana.
Our restated articles of incorporation authorize us to issue
500,000,000 shares of common stock, par value $1.00 per
share, and 50,000,000 shares of preferred stock, without
par value.
Common
Stock
Dividend Rights. Under our restated articles
of incorporation, holders of our common stock are entitled to
receive any dividends our board of directors may declare on the
common stock, subject to the prior rights of the preferred
stock. The board of directors may declare dividends from funds
legally available for this purpose.
Voting Rights. Our common stock has one vote
per share. The holders of our common stock are entitled to vote
on all matters to be voted on by shareholders. Our restated
articles of incorporation do not provide for cumulative voting.
This could prevent directors from being elected by a relatively
small group of shareholders.
Liquidation Rights. After provision for
payment of creditors and after payment of any liquidation
preferences to holders of the preferred stock, if we liquidate,
dissolve or are wound up, whether this is voluntary or not, the
holders of our common stock will be entitled to receive on a pro
rata basis all assets remaining.
Other Rights. Our common stock is not liable
to further calls or assessment. The holders of our common stock
are not currently entitled to subscribe for or purchase
additional shares of our capital stock. Our common stock is not
subject to redemption and does not have any conversion or
sinking fund provisions.
Preferred
Stock
Our board of directors has the authority, without further action
by shareholders, to issue up to 50,000,000 shares of
preferred stock in one or more series. The holders of our
preferred stock do not have the right to vote, except as our
board of directors establishes, or as provided in our restated
articles of incorporation or as determined by state law.
The board of directors has the authority to determine the terms
of each series of preferred stock, within the limits of our
restated articles of incorporation, our amended by-laws and the
laws of the state of Indiana. These terms include the number of
shares in a series, the consideration, dividend rights,
liquidation preferences, terms of redemption, conversion rights
and voting rights, if any.
Effects
on Our Common Stock if We Issue Preferred Stock
If we issue preferred stock, it may negatively affect the
holders of our common stock. These possible negative effects
include the following:
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diluting the voting power of shares of our common stock;
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affecting the market price of our common stock;
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delaying or preventing a change in control of ITT Corporation;
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making removal of our present management more difficult; or
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restricting dividends and other distributions on our common
stock.
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2
Provisions
of Our Restated Articles of Incorporation and Amended By-Laws
That Could Delay or Prevent a Change in Control
Certain provisions of our restated articles of incorporation and
amended by-laws may delay or make more difficult unsolicited
acquisitions or changes of control of the Company. We believe
that such provisions will enable us to develop our business in a
manner that will foster our long-term growth without disruption
caused by the threat of a takeover not deemed by our board of
directors to be in the best interests of the Company and our
shareholders. Such provisions could have the effect of
discouraging third parties from making proposals involving an
unsolicited acquisition or change of control of the Company,
although a majority of our shareholders might consider such
proposals, if made, desirable. Such provisions may also have the
effect of making it more difficult for third parties to cause
the replacement of our current management without the
concurrence of our board of directors. These provisions include:
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the availability of capital stock for issuance from time to time
at the discretion of our board of directors;
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the ability of our board of directors to increase the size of
the board and to appoint directors to fill newly-created
directorships;
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prohibitions against shareholders calling a special meeting of
shareholders; and
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requirements for advance notice for raising business or making
nominations at shareholders meetings.
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Authorized
But Unissued Capital Stock
The authorized but unissued shares of our common stock and
preferred stock will be available for future issuance without
shareholder approval. Indiana law does not require shareholder
approval for any issuance of authorized shares. However, the
listing requirements of the New York Stock Exchange, which would
apply to us so long as our common stock remains listed on the
New York Stock Exchange, require shareholder approval of certain
issuances equal to or exceeding 20% of the then outstanding
voting power or then outstanding number of shares of our common
stock. We may issue these additional shares for a variety of
corporate purposes, including future public offerings to raise
additional capital or to facilitate corporate acquisitions.
Our board may be able to issue shares of unissued and unreserved
common or preferred stock to persons friendly to current
management. This issuance may render more difficult or
discourage an attempt to obtain control of ITT Corporation by
means of a merger, tender offer, proxy contest or otherwise, and
thereby protect the continuity of our management. This could
possibly deprive our shareholders of opportunities to sell their
shares of our stock at prices higher than prevailing market
prices. Our board could also use these shares to dilute the
ownership of persons seeking to obtain control of the Company.
Number of
Directors; Filling of Vacancies
Our amended by-laws provide that the board of directors will
have at least 3 and at most 25 directors. The size of the
board may be changed by a majority vote of the board of
directors. A majority of the board determines the exact number
of directors at any given time. The board fills any new
directorships it creates and any vacancies, subject to the
requirement provided in the amended by-laws that the majority of
directors holding office immediately after such election be
independent directors, as defined in the amended by-laws.
Accordingly, our board may be able to prevent any shareholder
from obtaining majority representation on the board by
increasing the size of the board and filling the newly-created
directorships with its own nominees.
Special
Meetings
Our restated articles of incorporation and amended by-laws
provide that only the chairman of the board or a majority of our
board may call a special meeting of shareholders. This provision
may delay or prevent a shareholder from removing a director from
the board or from gaining control of the board.
3
Advance
Notice Provisions
Our amended by-laws require that for a shareholder to nominate a
director or bring other business before an annual meeting, the
shareholder must give written notice, in proper form, to the
Secretary of ITT Corporation not less than 120 days prior
to the date corresponding to the date on which we first mailed
our proxy materials for the prior years annual meeting.
Only persons who are nominated by, or at the direction of, our
board of directors, or who are nominated by a shareholder who
has given timely written notice, in proper form, to the
Secretary of ITT Corporation prior to a meeting at which
directors are to be elected will be eligible for election as
directors of ITT Corporation. The notice of any nomination for
election as a director must set forth:
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the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated;
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a representation that the shareholder is a holder of record of
our stock entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or
persons specified in the notice;
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a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons,
naming such person or persons, pursuant to which the nomination
or nominations are to be made by the shareholder;
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such other information regarding each nominee proposed by such
shareholder as would have been required to be included in a
proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had each nominee been
nominated, or intended to be nominated, by our board;
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the consent of each nominee to serve as a director if so
elected; and
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if the shareholder intends to solicit proxies in support of such
shareholders nominee(s), a representation to that effect.
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The notice to bring any other matter a shareholder proposes to
bring before an annual meeting must also set forth:
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a brief description of the proposal and the reasons therefor;
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if the proposal involves an amendment to our restated articles
of incorporation or amended by-laws, the language of the
amendment;
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any material interest of the shareholder in the
proposal; and
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if the shareholder intends to solicit proxies with respect to
the proposal, a representation to that effect.
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Our amended by-laws limit the business that may be conducted at
a special meeting to the purposes stated in the notice of the
meeting.
The advance notice provisions may delay a person from bringing
matters before a shareholder meeting. The provisions may provide
enough time for us to begin litigation or take other steps to
respond to these matters, or to prevent them from being acted
upon, if we find it desirable.
Certain
Provisions of the Indiana Business Corporation Law
As an Indiana corporation, we are governed by the Indiana
Business Corporation Law, or the IBCL. Under specified
circumstances, the following provisions of the IBCL may delay,
prevent or make more difficult unsolicited acquisitions or
changes of control of the Company. These provisions also may
have the effect of preventing changes in our management. It is
possible that these provisions could make it more difficult to
accomplish transactions which shareholders may otherwise deem to
be in their best interest.
Control Share Acquisitions. Under
Sections 23-1-42-1
to
23-1-42-11
of the IBCL, an acquiring person or group who makes a
control share acquisition in an issuing public
corporation may not exercise voting
4
rights on any control shares unless these voting
rights are conferred by a majority vote of the disinterested
shareholders of the issuing corporation at a special meeting of
those shareholders held upon the request and at the expense of
the acquiring person. If control shares acquired in a control
share acquisition are accorded full voting rights and the
acquiring person has acquired control shares with a majority or
more of all voting power, all shareholders of the issuing public
corporation have dissenters rights to receive the fair
value of their shares pursuant to
Section 23-1-44
of the IBCL.
Under the IBCL, control shares means shares acquired
by a person that, when added to all other shares of the issuing
public corporation owned by that person or in respect to which
that person may exercise or direct the exercise of voting power,
would otherwise entitle that person to exercise voting power of
the issuing public corporation in the election of directors
within any of the following ranges:
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one-fifth or more but less than one-third;
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one-third or more but less than a majority; or
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a majority or more.
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Control share acquisition means, subject to
specified exceptions, the acquisition, directly or indirectly,
by any person of ownership of, or the power to direct the
exercise of voting power with respect to, issued and outstanding
control shares. For the purposes of determining whether an
acquisition constitutes a control share acquisition, shares
acquired within 90 days or under a plan to make a control
share acquisition are considered to have been acquired in the
same acquisition. Issuing public corporation means a
corporation which is organized in Indiana and has (i) 100
or more shareholders, (ii) its principal place of business,
its principal office or substantial assets within Indiana and
(iii) (A) more than 10% of its shareholders resident in
Indiana, (B) more than 10% of its shares owned by Indiana
residents or (C) 10,000 shareholders resident in
Indiana.
The above provisions do not apply if, before a control share
acquisition is made, the corporations articles of
incorporation or bylaws, including a board adopted by-law,
provide that they do not apply. Our articles or incorporation
and bylaws do not currently exclude us from the restrictions
imposed by the above provisions.
Certain Business
Combinations. Sections 23-1-43-1
to
23-1-43-24
of the IBCL restrict the ability of a resident domestic
corporation to engage in any combinations with an
interested shareholder for five years after the date
the interested shareholder became such, unless the combination
or the purchase of shares by the interested shareholder on the
interested shareholders date of acquiring shares is
approved by the board of directors of the resident domestic
corporation before that date. If the combination was not
previously approved, the interested shareholder may effect a
combination after the five-year period only if that shareholder
receives approval from a majority of the disinterested shares or
the offer meets specified fair price criteria. For purposes of
the above provisions, resident domestic corporation
means an Indiana corporation that has 100 or more shareholders.
Interested shareholder means any person, other than
the resident domestic corporation or its subsidiaries, who is
(1) the beneficial owner, directly or indirectly, of 10% or
more of the voting power of the outstanding voting shares of the
resident domestic corporation or (2) an affiliate or
associate of the resident domestic corporation, which at any
time within the five-year period immediately before the date in
question, was the beneficial owner, directly or indirectly, of
10% or more of the voting power of the then outstanding shares
of the resident domestic corporation. The above provisions do
not apply to corporations that so elect in an amendment to their
articles of incorporation approved by a majority of the
disinterest shares. That amendment, however, cannot become
effective until 18 months after its passage and would apply
only to share acquisitions occurring after its effective date.
Our articles of incorporation do not exclude us from the
restrictions imposed by the above provisions.
5
Directors Duties and Liability. Under
Section 23-1-35-1
of the IBCL, directors are required to discharge their duties:
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in good faith;
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with the care an ordinarily prudent person in a like position
would exercise under similar circumstances; and
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in a manner the directors reasonably believe to be in the best
interests of the corporation.
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However, the IBCL also provides that a director is not liable
for any action taken as a director, or any failure to act,
unless the director has breached or failed to perform the duties
of the directors office and the action or failure to act
constitutes willful misconduct or recklessness.
The exoneration from liability under the IBCL does not affect
the liability of directors for violations of the federal
securities laws.
Section 23-1-35-1
of the IBCL also provides that a board of directors, in
discharging its duties, may consider, in it discretion, both the
long-term and short-term best interests of the corporation,
taking into account, and weighing as the directors deem
appropriate, the effects of an action on the corporations
shareholders, employees, suppliers and customers and the
communities in which offices or other facilities of the
corporation are located and any other factors the directors
consider pertinent. Directors are not required to consider the
effects of a proposed corporate action on any particular
corporate constituent group or interest as a dominant or
controlling factor. If a determination is made with the approval
of a majority of the disinterested directors of the board, that
determination is conclusively presumed to be valid unless it can
be demonstrated that the determination was not made in good
faith after reasonable investigation.
Section 23-1-35-1
specifically provides that specified judicial decisions in
Delaware and other jurisdictions, which might be looked upon for
guidance in interpreting Indiana law, including decisions that
propose a higher or different degree of scrutiny in response to
a proposed acquisition of the corporation, are inconsistent with
the proper application of the business judgment rule under that
section.
6
DESCRIPTION
OF DEBT SECURITIES
This prospectus describes certain general terms and provisions
of the debt securities. The debt securities will be issued under
an indenture between us and Union Bank, N.A., as trustee. 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
indenture. The summary is not complete. The indenture has been
incorporated by reference as an exhibit to the registration
statement for these securities that we have filed with the SEC.
You should read the indenture for the provisions which may be
important to you. The indenture is subject to and governed by
the Trust Indenture Act of 1939, as amended.
The indenture does not limit the amount of debt securities which
we may issue. We may issue debt securities up to 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 maturity date;
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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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whether the debt securities will be issued in the form of global
securities or certificates;
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the inapplicability 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 material 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 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.
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7
Senior
Debt
Senior debt securities will rank equally and pari passu with all
other unsecured and unsubordinated debt of the Company.
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 indenture, to all senior indebtedness of the
Company. The indenture defines senior indebtedness
as obligations or indebtedness of, or guaranteed or assumed by,
the Company for borrowed money whether or not represented by
bonds, debentures, notes or other similar instruments, and
amendments, renewals, extensions, modifications and refundings
of any such indebtedness or obligation. Senior
indebtedness does not include nonrecourse obligations, the
subordinated debt securities or any other obligations
specifically designated as being subordinate in right of payment
to senior indebtedness. See the indenture, section 13.01.
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 indebtedness
evidenced by 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 the Company or a substantial part of its property;
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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; or
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the principal of, and accrued interest on, any series of the
subordinated debt securities having been declared due and
payable upon an event of default pursuant to section 5.02
of the indenture. This declaration must not have been rescinded
and annulled as provided in the indenture.
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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.
Events of
Default
The indenture provides that, unless otherwise provided in a
particular series of debt securities, the term Event of
Default means:
(1) default in paying interest on the debt securities when
it becomes due and the default continues for a period of
30 days or more;
(2) default in paying principal, or premium, if any, on the
debt securities when due;
(3) default is made in the payment of any sinking or
purchase fund or analogous obligation when the same becomes due,
and such default continues for 30 days or more;
(4) default in the performance, or breach, of any covenant
in the indenture (other than defaults specified in clause (1),
(2) or (3) above) and the default or breach continues
for a period of 90 days or more after we receive written
notice from the trustee or we and the trustee receive notice
from the holders of at least 25% in aggregate principal amount
of the outstanding debt securities of the series;
8
(5) certain events of bankruptcy, insolvency,
reorganization, administration or similar proceedings with
respect to the Company has occurred; or
(6) any other Events of Default set forth in the prospectus
supplement.
If an Event of Default (other than an Event of Default specified
in clause (5) with respect to the Company) under the
indenture occurs with respect to the debt securities of any
series and is continuing, then the trustee or the holders of at
least 25% in principal amount of the outstanding debt securities
of that series may by written notice require us to repay
immediately the entire principal amount of the outstanding debt
securities of that series (or such lesser amount as may be
provided in the terms of the securities), together with all
accrued and unpaid interest and premium, if any.
If an Event of Default under the indenture specified in
clause (5) with respect to the Company occurs and is
continuing, then the entire principal amount of the outstanding
debt securities (or such lesser amount as may be provided in the
terms of the securities) will automatically become due and
payable immediately without any declaration or other act on the
part of the trustee or any holder.
After a declaration of acceleration, the holders of a majority
in principal amount of outstanding debt securities of any series
may rescind this accelerated payment requirement if all existing
Events of Default, except for nonpayment of the principal and
interest on the debt securities of that series that has become
due solely as a result of the accelerated payment requirement,
have been cured or waived and if the rescission of acceleration
would not conflict with any judgment or decree. The holders of a
majority in principal amount of the outstanding debt securities
of any series also have the right to waive past defaults, except
a default in paying principal or interest on any outstanding
debt security, and except in respect of a covenant or a
provision that cannot be modified or amended without the consent
of all holders of the debt securities of that series.
Holders of at least 25% in principal amount of the outstanding
debt securities of a series may seek to institute a proceeding
only after they have notified the Trustee of a continuing Event
of Default in writing and made a written request, and offered
reasonable indemnity, to the trustee to institute a proceeding
and the trustee has failed to do so within 60 days after it
received this notice. In addition, within this
60-day
period the trustee must not have received directions
inconsistent with this written request by holders of a majority
in principal amount of the outstanding debt securities of that
series. These limitations do not apply, however, to a suit
instituted by a holder of a debt security for the enforcement of
the payment of principal, interest or any premium on or after
the due dates for such payment.
During the existence of an Event of Default, the trustee is
required to exercise the rights and powers vested in it under
the indenture and use the same degree of care and skill in its
exercise as a prudent man would under the circumstances in the
conduct of that persons own affairs. If an Event of
Default has occurred and is continuing, the trustee is not under
any obligation to exercise any of its rights or powers at the
request or direction of any of the holders unless the holders
have offered to the trustee reasonable security or indemnity.
Subject to certain provisions, the holders of a majority in
principal amount of the outstanding debt securities of any
series have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
trustee, or exercising any trust, or power conferred on the
trustee.
The trustee will, within 90 days after any default occurs,
give notice of the default to the holders of the debt securities
of that series, unless the default was already cured or waived.
Unless there is a default in paying principal, interest or any
premium when due, the trustee can withhold giving notice to the
holders if it determines in good faith that the withholding of
notice is in the interest of the holders.
Modification
and Waiver
The indenture may be amended or modified without the consent of
any holder of debt securities in order to:
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evidence a succession to the Trustee;
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cure ambiguities, defects or inconsistencies or make any other
change that does not adversely affect in any material respect
the interests of any holder;
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provide for the assumption of our obligations in the case of a
merger or consolidation or transfer of all or substantially all
of our assets;
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make any change that would provide any additional rights or
benefits to the holders of the debt securities of a series;
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add guarantors with respect to the debt securities of any series;
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secure the debt securities of a series;
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establish the form or forms of debt securities of any series; or
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maintain the qualification of the indenture under the
Trust Indenture Act.
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Other amendments and modifications of the indenture or the debt
securities issued may be made with the consent of the holders of
not less than a majority of the aggregate principal amount of
the outstanding debt securities of each series affected by the
amendment or modification. However, no modification or amendment
may, without the consent of the holder of each outstanding debt
security affected:
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reduce the principal amount, or extend the fixed maturity, of
the debt securities;
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alter or waive the redemption provisions of the debt securities;
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change the currency in which principal, any premium or interest
is paid;
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reduce the percentage in principal amount outstanding of debt
securities of any series which must consent to an amendment,
supplement or waiver or consent to take any action;
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impair the right to institute suit for the enforcement of any
payment on the debt securities;
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waive a payment default with respect to the debt securities;
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reduce the interest rate or extend the time for payment of
interest on the debt securities; or
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adversely affect the ranking of the debt securities of any
series.
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Certain
Covenants
Limitation
on Liens
The indenture provides that with respect to senior debt
securities, unless otherwise provided in a particular series of
senior debt securities, we will not, and will not permit any of
our restricted subsidiaries to, incur, suffer to exist or
guarantee any debt secured by a lien on any principal property
or on any shares of stock of (or other interests in) any of our
restricted subsidiaries unless we or that first-mentioned
restricted subsidiary secures or we cause such restricted
subsidiary to secure the senior debt securities (and any of its
or such restricted subsidiarys other debt, at its option
or such restricted subsidiarys option, as the case may be,
not subordinate to the senior debt securities), equally and
ratably with (or prior to) such secured debt, for as long as
such secured debt will be so secured.
These restrictions will not, however, apply to debt secured by:
(1) any liens existing prior to the issuance of such senior
debt securities;
(2) any lien on property of or shares of stock of (or other
interests in) or debt of any entity existing at the time such
entity becomes a restricted subsidiary;
(3) any liens on property, shares of stock of (or other
interests in) or debt of any entity (a) existing at the
time of acquisition of such property or shares (or other
interests) (including acquisition through merger or
consolidation), (b) to secure the payment of all or any
part of the purchase price of such property or shares (or other
interests) or the costs of construction or improvement of such
property or (c) to secure any debt incurred prior to, at
the time of, or within 180 days after the later of the
acquisition, the completion of construction or the commencement
of full operation of such property or within 180 days after
the acquisition of such shares (or other interests) for the
purpose of financing all or
10
any part of the purchase price of such property or shares (or
other interests) or the costs of construction thereon;
(4) any liens in favor of us or any of our restricted
subsidiaries;
(5) any liens in favor of, or required by contracts with,
governmental entities; or
(6) any extension, renewal, or refunding of liens referred
to in any of the preceding clauses (1) through (5).
Notwithstanding the foregoing, we or any of our restricted
subsidiaries may incur, suffer to exist or guarantee any debt
secured by a lien on any principal property or on any shares of
stock of (or other interests in) any of our restricted
subsidiaries if, after giving effect thereto and together with
the value of attributable debt outstanding pursuant to the
second paragraph of the Limitation on Sale and
Lease-Back Transactions covenant below, the aggregate
amount of such debt does not exceed 15% of our consolidated net
tangible assets.
The indenture does not restrict the transfer by us of a
principal property to any of our unrestricted subsidiaries or
our ability to change the designation of a subsidiary owning
principal property from a restricted subsidiary to an
unrestricted subsidiary and, if we were to do so, any such
unrestricted subsidiary would not be restricted from incurring
secured debt nor would we be required, upon such incurrence, to
secure the debt securities equally and ratably with such secured
debt.
Limitation
on Sale and Lease-Back Transactions
We will not enter into any sale and lease-back transaction with
respect to any principal property, other than any such sale and
lease-back transaction involving a lease for a term of not more
than three years or any such sale and lease-back transaction
between us and one of our restricted subsidiaries or between our
restricted subsidiaries, unless: (a) we or such restricted
subsidiary would be entitled to incur debt secured by a lien on
the principal property involved in such sale and lease-back
transaction at least equal in amount to the attributable debt
with respect to such sale and lease-back transaction, without
equally and ratably securing the debt securities, pursuant to
the covenant described above under the caption
Limitation on Liens; or (b) the
proceeds of such sale and lease-back transaction are at least
equal to the fair market value of the affected principal
property (as determined in good faith by our board of directors)
and we apply an amount equal to the net proceeds of such sale
and lease-back transaction within 180 days of such sale and
lease-back transaction to any (or a combination) of (i) the
prepayment or retirement of the debt securities, (ii) the
prepayment or retirement (other than any mandatory retirement,
mandatory prepayment or sinking fund payment or by payment at
maturity) of other debt of us or of one of our restricted
subsidiaries (other than debt that is subordinated to the debt
securities or debt owed to us or one of our restricted
subsidiaries) that matures more than 12 months after its
creation or matures less than 12 months after its creation
but by its terms being renewable or extendible, at the option of
the obligor in respect thereof, beyond 12 months from its
creation or (iii) the purchase, construction, development,
expansion or improvement of other comparable property.
Notwithstanding the restrictions in the preceding paragraph, we
will be permitted to enter into sale and lease-back transactions
otherwise prohibited by this covenant, the attributable debt
with respect to which, together with all debt outstanding
pursuant to the third paragraph of the
Limitation on Liens covenant above,
without duplication, do not exceed 15% of consolidated net
tangible assets measured at the closing date of the sale and
lease-back transaction.
Definitions. The following are definitions of
some terms used in the above description. We refer you to the
indenture for a full description of all of these terms, as well
as any other terms used herein for which no definition is
provided.
attributable debt with regard to a sale and
lease-back transaction with respect to any principal property
means, at the time of determination, the present value of the
total net amount of rent required to be paid under such lease
during the remaining term thereof (including any period for
which such lease has been extended), discounted at the rate of
interest set forth or implicit in the terms of such lease (or,
if not practicable to
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determine such rate, the weighted average interest rate per
annum borne by the securities then outstanding under the
indenture) compounded semi-annually. In the case of any lease
which is terminable by the lessee upon the payment of a penalty,
such net amount shall be the lesser of (x) the net amount
determined assuming termination upon the first date such lease
may be terminated (in which case the net amount shall also
include the amount of the penalty, but shall not include any
rent that would be required to be paid under such lease
subsequent to the first date upon which it may be so terminated)
or (y) the net amount determined assuming no such
termination.
consolidated net tangible assets means the
total amount of our assets and our restricted subsidiaries
assets minus:
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all applicable depreciation, amortization and other valuation
reserves;
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all current liabilities of ours and our restricted subsidiaries
(excluding any intercompany liabilities); and
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all goodwill, trade names, trademarks, patents, unamortized debt
discount and expenses and other like intangibles, all as set
forth on our and our restricted subsidiaries latest
consolidated balance sheets prepared in accordance with
U.S. GAAP.
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debt means any indebtedness for borrowed
money.
principal property means any single
manufacturing or processing plant, office building or warehouse
owned or leased by us or any of our restricted subsidiaries
which has a gross book value in excess of 2% of our consolidated
net tangible assets other than a plant, warehouse, office
building, or portion thereof which, in the opinion of the
Companys Board of Directors, is not of material importance
to the business conducted by the Company and its Restricted
Subsidiaries as an entirety.
restricted subsidiary means, at any time, any
subsidiary which at the time is not an unrestricted subsidiary
of ours.
subsidiary means any entity, at least a
majority of the outstanding voting stock of which shall at the
time be owned, directly or indirectly, by us or by one or more
of our subsidiaries, or both.
unrestricted subsidiary means any subsidiary
of ours (not at the time designated as our restricted
subsidiary) (1) the major part of whose business consists
of finance, banking, credit, leasing, insurance, financial
services or other similar operations, or any combination
thereof, (2) substantially all the assets of which consist
of the capital stock of one or more subsidiaries engaged in the
operations referred to in the preceding clause (1), or
(3) designated as an unrestricted subsidiary by our Board
of Directors.
Consolidation,
Merger or Sale of Assets
The indenture provides that we may consolidate or merge with or
into, or convey or transfer all or substantially all of our
assets to, any entity (including, without limitation, a limited
partnership or a limited liability company); provided
that:
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we will be the surviving corporation or, if not, that the
successor will be a corporation that is organized and validly
existing under the laws of any state of the United States of
America or the District of Columbia and will expressly assume by
a supplemental indenture our obligations under the indenture and
the debt securities;
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immediately after giving effect to such transaction, no event of
default, and no default or other event which, after notice or
lapse of time, or both, would become an event of default, will
have happened and be continuing; and
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we will have delivered to the trustee an opinion of counsel,
stating that such consolidation, merger, conveyance or transfer
complies with the indenture.
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In the event of any such consolidation, merger, conveyance,
transfer or lease, any such successor will succeed to and be
substituted for us as obligor on the debt securities with the
same effect as if it had been named in the indenture as obligor.
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Unless otherwise disclosed in the applicable prospectus
supplement, there are no other restrictive covenants contained
in the Indenture. The Indenture does not contain any other
provision that will restrict us from entering into one or more
additional indentures providing for the issuance of debt
securities or warrants, or from incurring, assuming, or becoming
liable with respect to any indebtedness or other obligation,
whether secured or unsecured, or from paying dividends or making
other distributions on our capital stock, or from purchasing or
redeeming our capital stock.
Satisfaction,
Discharge and Covenant Defeasance
We may terminate our obligations under the indenture, when:
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all debt securities of any series issued that have been
authenticated and delivered have been delivered to the trustee
for cancellation; or
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all the debt securities of any series issued that have not been
delivered to the trustee for cancellation have become due and
payable, will become due and payable within one year, or are to
be called for redemption within one year and we have made
arrangements satisfactory to the trustee for the giving of
notice of redemption by such trustee in our name and at our
expense, and in each case, we have irrevocably deposited or
caused to be deposited with the trustee sufficient funds to pay
and discharge the entire indebtedness on the series of debt
securities to pay principal, interest and any premium; and
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we have paid or caused to be paid all other sums then due and
payable under the indenture; and
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we have delivered to the trustee an officers certificate
and an opinion of counsel, each stating that all conditions
precedent under the indenture relating to the satisfaction and
discharge of the indenture have been complied with.
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We may elect to have our obligations under the indenture
discharged with respect to the outstanding debt securities of
any series (legal defeasance). Legal defeasance
means that we will be deemed to have paid and discharged the
entire indebtedness represented by the outstanding debt
securities of such series under the indenture, except for:
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the rights of holders of the debt securities to receive
principal, interest and any premium when due;
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our obligations with respect to the debt securities concerning
issuing temporary debt securities, registration of transfer of
debt securities, mutilated, destroyed, lost or stolen debt
securities and the maintenance of an office or agency for
payment for security payments held in trust;
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the rights, powers, trusts, duties and immunities of the
trustee; and
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the defeasance provisions of the indenture.
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In addition, we may elect to have our obligations released with
respect to certain covenants in the indenture (covenant
defeasance). Any omission to comply with these obligations
will not constitute a default or an event of default with
respect to the debt securities of any series. In the event
covenant defeasance occurs, certain events, not including
non-payment, bankruptcy and insolvency events, described under
Events of Default above will no longer constitute an
event of default for that series.
In order to exercise either legal defeasance or covenant
defeasance with respect to outstanding debt securities of any
series:
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we must irrevocably have deposited or caused to be deposited
with the trustee as trust funds for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to the benefits of the holders of the debt
securities of a series:
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13
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U.S. government obligations (or equivalent government
obligations in the case of debt securities denominated in other
than U.S. dollars or a specified currency) that will
provide, not later than one day before the due date of any
payment, money in an amount; or
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a combination of money and U.S. government obligations (or
equivalent government obligations, as applicable),
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in each case sufficient, in the written opinion (with respect to
U.S. or equivalent government obligations or a combination
of money and U.S. or equivalent government obligations, as
applicable) of a nationally recognized firm of independent
registered public accountants to pay and discharge, and which
shall be applied by the trustee to pay and discharge, all of the
principal (including mandatory sinking fund payments), interest
and any premium at due date or maturity;
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in the case of legal defeasance, we have delivered to the
trustee an opinion of counsel stating that, under then
applicable Federal income tax law, the holders of the debt
securities of that series will not recognize income, gain or
loss for federal income tax purposes as a result of the deposit,
defeasance and discharge to be effected and will be subject to
the same federal income tax as would be the case if the deposit,
defeasance and discharge did not occur;
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in the case of covenant defeasance, we have delivered to the
trustee an opinion of counsel to the effect that the holders of
the debt securities of that series will not recognize income,
gain or loss for U.S. federal income tax purposes as a
result of the deposit and covenant defeasance to be effected and
will be subject to the same federal income tax as would be the
case if the deposit and covenant defeasance did not occur;
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no event of default or default with respect to the outstanding
debt securities of that series has occurred and is continuing at
the time of such deposit after giving effect to the deposit or,
in the case of legal defeasance, no default relating to
bankruptcy or insolvency has occurred and is continuing at any
time on or before the 91st day after the date of such
deposit, it being understood that this condition is not deemed
satisfied until after the 91st day;
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the legal defeasance or covenant defeasance will not cause the
trustee to have a conflicting interest within the meaning of the
Trust Indenture Act, assuming all debt securities of a
series were in default within the meaning of such Act;
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the legal defeasance or covenant defeasance will not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which we are a party;
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the legal defeasance or covenant defeasance will not result in
the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of
1940, as amended, unless the trust is registered under such Act
or exempt from registration; and
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we have delivered to the trustee an officers certificate
and an opinion of counsel stating that all conditions precedent
with respect to the defeasance or covenant defeasance have been
complied with.
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Concerning
our Relationship with the Trustee
We and our subsidiaries maintain ordinary banking relationships
and credit facilities with Union Bank and its affiliates.
14
DESCRIPTION
OF DEBT WARRANTS
We may issue warrants to purchase our debt securities. Warrants
may be issued independently or together with any other
securities and may be attached to, or separate from, such
securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a
warrant agent. The terms of any warrants to be issued and a
description of the material provisions of the applicable warrant
agreement will be set forth in the applicable prospectus
supplement.
The applicable prospectus supplement will describe the following
terms of any warrants in respect of which this prospectus is
being delivered:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies in which the price of such warrants
will be payable;
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the price at which and the currency or currencies in which the
securities or other rights purchasable upon exercise of such
warrants may be purchased;
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the date on which the right to exercise such warrants shall
commence and the date on which such right shall expire;
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if applicable, the minimum or maximum amount of such warrants
which may be exercised at any one time;
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if applicable, the designation and terms of the securities with
which such warrants are issued and the number of such warrants
issued with each such security;
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if applicable, the date on and after which such warrants and the
related securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of any material United States
Federal income tax considerations; and
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any other terms of such warrants, including terms, procedures
and limitations relating to the exchange and exercise of such
warrants.
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15
DESCRIPTION
OF UNITS
As specified in the applicable prospectus supplement, we may
issue units consisting of one or more warrants, debt securities,
shares of common or preferred stock or any combination of such
securities. The applicable prospectus supplement will describe:
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the terms of the units and of the warrants, debt securities,
common stock and preferred stock comprising the units, including
whether and under what circumstances the securities comprising
the units may be traded separately;
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a description of the terms of any unit agreement governing the
units; and
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a description of the provisions for the payment, settlement,
transfer or exchange of the units.
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16
FORMS OF
SECURITIES
Each debt security, warrant, and unit will be represented either
by a certificate issued in definitive form to a particular
investor or by one or more global securities representing the
entire issuance of securities. Certificated securities in
definitive form and global securities will be issued in
registered form. Definitive securities name you or your nominee
as the owner of the security, and in order to transfer or
exchange these securities or to receive payments other than
interest or other interim payments, you or your nominee must
physically deliver the securities to the trustee, registrar,
paying agent or other agent, as applicable. Global securities
name a depositary or its nominee as the owner of the debt
securities, warrants, or units represented by these global
securities. The depositary maintains a computerized system that
will reflect each investors beneficial ownership of the
securities through an account maintained by the investor with
its broker/dealer, bank, trust company or other representative,
as we explain more fully below.
Global
Securities
Registered Global Securities. We may issue the
registered debt securities, warrants, and units in the form of
one or more fully registered 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. In those cases, one or more
registered 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
registered global securities. Unless and until it is exchanged
in whole for securities in definitive registered form, a
registered global security may not be transferred except as a
whole by and among the depositary for the registered 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 registered 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 registered 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
registered 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
registered 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 registered global securities.
So long as the depositary, or its nominee, is the registered
owner of a registered 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 registered global
security for all purposes under the applicable indenture,
warrant agreement or unit agreement. Except as described below,
owners of beneficial interests in a registered global security
will not be entitled to have the securities represented by the
registered 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, warrant agreement or unit agreement. Accordingly,
each person owning a beneficial interest in a registered global
security must rely on the procedures of the depositary for that
registered 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, warrant agreement or unit
agreement. We understand that under existing industry practices,
if we request any action of holders or if an owner of a
beneficial interest in a registered global security desires to
give or take any action that a holder is entitled to give or
take under the applicable indenture, warrant agreement or unit
agreement, the depositary for the registered global security
would
17
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, and any payments to holders with respect to warrants
or units, represented by a registered 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 registered global security. None of the Company,
the trustee, the warrant agents, the unit agents or any other
agent of the Company, agent of the trustee or agent of the
warrant agents or unit agents will have any responsibility or
liability for any aspect of the records relating to payments
made on account of beneficial ownership interests in the
registered 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 registered global security, upon receipt of any
payment of principal, premium, interest or other distribution of
underlying securities or other property to holders on that
registered global security, will immediately credit
participants accounts in amounts proportionate to their
respective beneficial interests in that registered global
security as shown on the records of the depositary. We also
expect that payments by participants to owners of beneficial
interests in a registered 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
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, and a
successor depositary registered as a clearing agency under the
Securities Exchange Act of 1934 is not appointed by us within
90 days, we will issue securities in definitive form in
exchange for the registered global security that had been held
by the depositary. Any securities issued in definitive form in
exchange for a registered global security will be registered in
the name or names that the depositary gives to the relevant
trustee, warrant agent, unit agent or other relevant agent of
ours or theirs. It is expected that the depositarys
instructions will be based upon directions received by the
depositary from participants with respect to ownership of
beneficial interests in the registered global security that had
been held by the depositary.
18
PLAN OF
DISTRIBUTION
We may sell the securities offered pursuant to this prospectus
in any of the following ways:
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directly to one or more purchasers;
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through agents;
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through underwriters, brokers or dealers; or
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through a combination of any of these methods of sale.
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We will identify the specific plan of distribution, including
any underwriters, brokers, dealers, agents or direct purchasers
and their compensation in a prospectus supplement.
LEGAL
MATTERS
The validity of the securities offered by this prospectus and
any prospectus supplement will be passed upon for us by Simpson
Thacher & Bartlett LLP, New York, New York and
Baker & Daniels LLP. Counsel for any underwriters,
agents or dealers will be named in the accompanying prospectus
supplement.
EXPERTS
The financial statements incorporated in this prospectus by
reference from the Companys Annual Report on
Form 10-K,
and the effectiveness of the Companys internal control
over financial reporting have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their reports, which are
incorporated herein by reference. Such financial statements have
been so incorporated in reliance upon the reports of such firm
given upon their authority as experts in accounting and auditing.
19
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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ITEM 14.
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OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION
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The following table sets forth the costs and expenses payable by
us in connection with the sale and distribution of the
securities being registered.
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SEC Registration Fee
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(1
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)
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Rating Agency Fees
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(2
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Accounting Fees and Expenses
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(2
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)
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Legal Fees and Expenses
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(2
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)
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Printing Expenses
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(2
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Trustees Fees and Expenses
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(2
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Miscellaneous
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(2
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Total
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(2
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)
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(1) |
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In accordance with Rules 456(b) and 457(r), the registrant
is deferring payment of all of the Registration Fee |
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(2) |
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An estimate of the aggregate amount of these expenses will be
reflected in the applicable prospectus supplement. |
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ITEM 15.
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INDEMNIFICATION
OF DIRECTORS AND OFFICERS
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Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers, and
controlling persons pursuant to the following provisions, or
otherwise, we have 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.
The Indiana Business Corporation Law (IBCL), the
provisions of which we are governed by, empowers an Indiana
corporation to indemnify present and former directors, officers,
employees, or agents or any person who may have served at the
request of the corporation as a director, officer, employee, or
agent of another corporation (Eligible Persons)
against liability incurred in any proceeding, civil or criminal,
in which the Eligible Person is made a party by reason of being
or having been in any such capacity, or arising out of his
status as such, if the individual acted in good faith and
reasonably believed that (a) the individual was acting in
the best interests of the corporation, or (b) if the
challenged action was taken other than in the individuals
official capacity as an officer, director, employee or agent,
the individuals conduct was at least not opposed to the
corporations best interests, or (c) if in a criminal
proceeding, either the individual had reasonable cause to
believe his conduct was lawful or no reasonable cause to believe
his conduct was unlawful.
The IBCL further empowers a corporation to pay or reimburse the
reasonable expenses incurred by an Eligible Person in connection
with the defense of any such claim, including counsel fees; and,
unless limited by its articles of incorporation, the corporation
is required to indemnify an Eligible Person against reasonable
expenses if he is wholly successful in any such proceeding, on
the merits or otherwise. Under certain circumstances, a
corporation may pay or reimburse an Eligible Person for
reasonable expenses prior to final disposition of the matter.
Unless a corporations articles of incorporation provide
otherwise, an Eligible Person may apply for indemnification to a
court which may order indemnification upon a determination that
the Eligible Person is entitled to mandatory indemnification for
reasonable expenses or that the Eligible Person is fairly and
reasonably entitled to indemnification in view of all the
relevant circumstances without regard to whether his actions
satisfied the appropriate standard of conduct.
Before a corporation may indemnify any Eligible Person against
liability or reasonable expenses under the IBCL, a quorum
consisting of directors who are not parties to the proceeding
must (1) determine the indemnification is permissible in
the specific circumstances because the Eligible Person met the
requisite
II-1
standard of conduct, (2) authorize the corporation to
indemnify the Eligible Person and (3) if appropriate,
evaluate the reasonableness of expenses for which
indemnification is sought. If it is not possible to obtain a
quorum of uninvolved directors, the foregoing action may be
taken by a committee of two or more directors who are not
parties to the proceeding, special legal counsel selected by the
Board or such a committee, or by the shareholders of the
corporation.
In addition to the foregoing, the IBCL states that the
indemnification it provides shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under
any provision of a corporations articles of incorporation
or by-laws, resolution of the board of directors or
shareholders, or any other authorization adopted after notice by
a majority vote of all the voting shares then issued and
outstanding. The IBCL also empowers an Indiana corporation to
purchase and maintain insurance on behalf of any Eligible Person
against any liability asserted against or incurred by him in any
capacity as such, or arising out of his status as such, whether
or not the corporation would have had the power to indemnify him
against such liability.
Our restated articles of incorporation provide that no director
or officer shall be personally liable to the Company or any of
our shareholders for damages for breach of fiduciary duty as a
director or officer, except for liability for breach of duty if
such breach constitutes willful misconduct or recklessness or
for the payment of distributions to shareholders in violation of
the IBCL.
Our amended by-laws provide for mandatory indemnification, to
the fullest extent permitted by law, of our directors and
officers against all expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in
connection with any threatened, pending or completed
investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative, including any action,
suit or proceeding by or in the right of the Company, in which
such person may have become involved by reason of being or
having been a director, officer, employee or agent. The right to
indemnification is a contract right and includes the right to
advancement of expenses in accordance with specified procedures.
The rights to indemnification provided by our restated articles
of incorporation and amended by-laws are not exclusive of any
other rights to which any indemnified person may otherwise be
entitled.
We have entered into indemnification agreements with certain of
our directors, pursuant to which we have agreed to indemnify and
hold harmless, to the fullest extent permitted by applicable law
and our amended by-laws, each such director against any and all
expenses, liabilities or losses asserted against or incurred by
the director in his capacity as a director of the Company or
arising out of his status in such capacity. The indemnification
agreements set forth certain procedures that will apply in the
event of a claim for indemnification thereunder. In addition,
the agreements provide for the advancement of expenses incurred
by a director, subject to certain exceptions, in connection with
any action, suit or proceeding covered by the agreement. We will
not be liable for payments in respect of a director under the
agreements in certain circumstances including, but not limited
to, acts of such director involving intentional misconduct or a
knowing violation of law, acts which were known or believed by
such director to be opposed to our best interests and
transactions from which such director derived an improper
personal benefit.
We have purchased directors and officers liability
insurance, the effect of which is to indemnify our directors and
officers and the directors and officers of our subsidiaries
against certain losses caused by errors, misstatement or
misleading statements, wrongful acts, omissions, neglect or
breach of duty by them or similar matters claimed against them
in their capacities as directors or officers. This insurance is
subject to various deductibles and exclusions from coverage.
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1
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.1
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Form of Underwriting Agreement (filed herewith).
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1
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.2*
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Form of Distribution Agreement.
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4
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.1
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ITT Corporations Articles of Amendment of the Restated
Articles of Incorporation, effective as of May 13, 2008
(incorporated by reference to Exhibit 3.1 of ITT
Corporations
Form 8-K
Current Report dated May 14, 2008).
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II-2
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4
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.2
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ITT Corporations By-laws, as amended May 13, 2008
(incorporated by reference to Exhibit 3.2 of ITT
Corporations
Form 8-K
Current Report dated May 14, 2008).
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4
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.3
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Form of Indenture (filed herewith).
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4
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.4*
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Form of Debt Securities.
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4
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.5*
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Form of Warrant Agreement.
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4
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.6*
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Form of Warrant Certificate
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4
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.7*
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Form of Unit Agreement
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5
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.1
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Opinion of Simpson Thacher & Bartlett LLP (filed
herewith).
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5
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.2
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Opinion of Baker & Daniels LLP (filed herewith).
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12
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.1
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Computation of ratios of earnings to fixed charges (incorporated
herein by reference to Exhibit 12.1 to ITT
Corporations Annual Report on
Form 10-K
filed on February 25, 2009).
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23
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.1
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Consent of Simpson Thacher & Bartlett LLP (included in
Exhibit 5.1).
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.2
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Consent of Baker & Daniels LLP (included in
Exhibit 5.2).
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.3
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Consent of Deloitte & Touche LLP, Independent
Registered Public Accounting Firm (filed herewith).
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24
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.1
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Powers of Attorney (filed herewith).
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25
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.1
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Statement of Eligibility and Qualification of Trustee on
Form T-1
under the Trust Indenture Act of 1939, as amended, for the
Debt Securities (filed herewith).
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* |
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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. |
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(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 this 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) under
the Securities Act 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; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) shall not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in the 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
II-3
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 the 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 registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement
relating to securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-4
(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.
(d)(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective; and
(2) For purposes of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of White Plains, State of New York on the
28th day
of April, 2009.
ITT CORPORATION
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By:
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/s/ Kathleen
S. Stolar
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Name: Kathleen S. Stolar
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Title:
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Vice President, Secretary and Associate General Counsel
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Denise
L. Ramos, Donald E. Foley and Kathleen S. Stolar and each of
them, as his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for
him or her in his or her name, place and stead, in any and all
capacity, in connection with this registration statement,
including to sign and file in the name and on behalf of the
undersigned as director or officer of the registrant
(1) any and all amendments or supplements (including any
and all stickers and post-effective amendments) to this
registration statement, with all exhibits thereto, and other
documents in connection therewith, and (2) any and all
additional registration statements, and any and all amendments
thereto, relating to the same offering of securities as those
that are covered by this registration statement that are filed
pursuant to Rule 462(b) promulgated under the Securities
Act of 1933, as amended, with the Securities and Exchange
Commission and any applicable securities exchange or securities
self-regulatory body, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and
perform each and every act and things requisite or necessary to
be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their 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 on April 23, 2009.
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Signature
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Title
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/s/ Steven
R. Loranger
Steven
R. Loranger
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Chairman, President and Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ Denise
L. Ramos
Denise
L. Ramos
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Senior Vice President and Chief Financial Officer
(Principal Financial Officer)
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/s/ Janice
M. Klettner
Janice
M. Klettner
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Vice President and Chief Accounting Officer
(Principal Accounting Officer)
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/s/ Curtis
J. Crawford
Curtis
J. Crawford
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Director
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/s/ Christina
A. Gold
Christina
A. Gold
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Director
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II-6
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Signature
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Title
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/s/ Ralph
F. Hake
Ralph
F. Hake
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Director
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/s/ John
J. Hamre
John
J. Hamre
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Director
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/s/ Paul
J. Kern
Paul
J. Kern
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Director
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/s/ Frank
T. MacInnis
Frank
T. MacInnis
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Director
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/s/ Surya
N. Mohapatra
Surya
N. Mohapatra
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Director
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/s/ Linda
S. Sanford
Linda
S. Sanford
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Director
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/s/ Markos
I. Tambakeras
Markos
I. Tambakeras
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Director
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II-7