Automatic Shelf Registration Statement for Securities of a Well-Known Seasoned Issuer — Form S-3 Filing Table of Contents
Document/ExhibitDescriptionPagesSize 1: S-3ASR Form S-3 HTML 167K
2: EX-1.1 Underwriting Agreement HTML 22K
3: EX-1.2 Underwriting Agreement HTML 86K
4: EX-4.3 Instrument Defining the Rights of Security Holders HTML 440K
5: EX-4.4 Instrument Defining the Rights of Security Holders HTML 463K
6: EX-4.5 Instrument Defining the Rights of Security Holders HTML 127K
7: EX-4.6 Instrument Defining the Rights of Security Holders HTML 59K
8: EX-5.1 Opinion re: Legality HTML 14K
9: EX-12.1 Statement re: Computation of Ratios HTML 15K
10: EX-23.1 Consent of Experts or Counsel HTML 7K
11: EX-24.1 Power of Attorney HTML 15K
12: EX-25.1 Statement re: Eligibility of Trustee HTML 201K
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Copies to: Mark R. Levie, Esq.
Orrick, Herrington & Sutcliffe LLP
The Orrick Building
405 Howard Street San Francisco, California94105
Approximate date of commencement of proposed sale to the public: From time to time after
the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box.
þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
Registration Statement number of the earlier effective Registration Statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act Registration 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 filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Offering Price per
Unit/Proposed
Maximum Aggregate
Offering
Price/Amount of
Title of Each Class of Securities to be Registered
Amount to be Registered
Registration Fee
Debt Securities
$
2,000,000,000
(1
)
Total
$
2,000,000,000
(1) An indeterminate number of securities is being registered as may from time to time
be sold at indeterminate prices, up to an initial maximum aggregate offering price equal to
$2,000,000,000. This maximum aggregate initial offering amount may be increased by post-effective
amendment. In accordance with Rules 456(b) and 457(r), the registrant is deferring payment of all
of the registration fee.
Golden West Financial Corporation may offer and sell, from time to time, unsecured senior
and subordinated debt securities, in one or more series, consisting of notes, debentures or other
evidences of indebtedness.
The aggregate initial offering price of debt securities that may be sold pursuant to this
prospectus will be as stated in one or more supplements to this prospectus. We will provide the
specific terms of the debt securities to be sold by us in supplements to this prospectus. You
should read this prospectus and any applicable prospectus supplement carefully before you invest.
Our principal executive office is located at 1901 Harrison Street, Oakland, California94612,
and the telephone number is (510) 446-3420.
These debt securities have not been approved by the Securities and Exchange Commission or
any state securities commission, nor have these organizations determined that this prospectus is
accurate or complete. Any representation to the contrary is a criminal offense.
This prospectus is part of an automatic shelf registration statement that we filed with the
Securities and Exchange Commission (the “SEC”) as a “well-known seasoned issuer” as defined in Rule
405 under the Securities Act of 1933, as amended. Under the automatic shelf process, we may, over
time, sell any combination of the debt securities described in this prospectus or in any applicable
prospectus supplement in one or more offerings. This prospectus provides you with a general
description of the debt securities we may offer. Each time we sell debt securities, we will
provide a prospectus supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement together with the
additional information described under the heading “Where You Can Find More Information.”
In this prospectus, references to “Golden West,”“the Company,”“we,”“us,” and “our” mean
Golden West Financial Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements, and other information with
the SEC. You may 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. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Our SEC filings are also available to the public at the
SEC’s web site at http://www.sec.gov. Reports, proxy material and other information about us can
also be inspected at the offices of the New York and Pacific Stock Exchanges.
The SEC allows us to “incorporate by reference” the information that we file with it, which
means that we can disclose important information to you by referring to that information. The
information incorporated by reference is considered to be part of this prospectus, and later
information filed with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, until we
sell all of the debt securities described in this prospectus:
•
Our Annual Report on Form 10-K for the year ended December 31, 2004.
•
Our Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30,
and September 30, 2005.
You may request a copy of these filings (other than an exhibit to a filing unless that exhibit is
specifically incorporated by reference into that filing) at no cost by telephoning or writing us at
the following address:
Golden West Financial Corporation
Attn: William Nunan
1901 Harrison Street Oakland, California94612
Phone: (510) 446-3420
You should rely only on the information incorporated by reference or provided by us in this
prospectus or any prospectus supplement. We have not authorized anyone else to provide you with
different information. We are only offering the debt securities in states where the offer is
permitted. You should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those documents.
This prospectus, and the documents incorporated by reference in this prospectus, contain
various forward-looking statements within the meaning of the Private Securities Litigation Reform
Act of 1995. When used in this document, words such as “anticipate,”“estimate,”“project,” and
“expect” are intended to identify forward-looking statements. Although we believe that the
expectations reflected in such forward-looking statements are reasonable, we can give no assurance
that such expectations will prove to have been correct. Forward-looking statements include
projections, statements of the plans and objectives of management for future operations, statements
of future economic performance, assumptions underlying these statements and other statements that
are not statements of historical facts. Forward-looking statements are subject to significant
business, economic and competitive risks, uncertainties and contingencies, many of which are beyond
our control. Should one or more of these risks, uncertainties or contingencies materialize, or
should underlying assumptions prove incorrect, actual results may vary materially from those
anticipated. Among the key risk factors that may have a direct bearing on our results of
operations and financial condition are:
•
competitive practices in the financial services industries;
•
operational and systems risks;
•
general economic and capital market conditions, including fluctuations in interest rates;
•
economic conditions in certain geographic areas; and
•
the impact of current and future laws, governmental regulations and
accounting and other rulings and guidelines affecting the financial services
industry in general and Golden West’s operations in particular.
In addition, actual results may differ materially from the results discussed in any forward-looking
statements.
GOLDEN WEST FINANCIAL CORPORATION
Golden West Financial Corporation, a Delaware corporation, is a savings and loan holding
company, the principal business of which is the operation of a savings bank business through its
wholly owned subsidiary, World Savings Bank, FSB (“WSB”). WSB is a federally chartered savings
bank with deposits insured by the Federal Deposit Insurance Corporation. WSB has a wholly owned
subsidiary, World Savings Bank, FSB (Texas) (“WTX” and together with WSB, the “World Subsidiaries”)
that is also a federally chartered savings bank.
We are a residential mortgage portfolio lender. Our principal business, conducted through the
World Subsidiaries, is attracting savings deposits from the general public, and investing those
funds, together with Federal Home Loan Bank advances and other borrowings, principally in mortgage
loans secured by residential real estate. Headquartered in Oakland, California, we are one of the
nation’s largest financial institutions and we have one of the most extensive thrift branch systems
in the country with 283 savings branches in ten states and lending operations in 38 states.
We and our subsidiaries are subject to extensive examination, supervision and regulation by
the Office of Thrift Supervision (“OTS”) and the Federal Deposit Insurance Corporation. Applicable
regulations govern, among other things, our lending and investment powers, the types of accounts we
are permitted to offer, the types of business in which we may engage, and requirements for
regulatory capital. We are also subject to regulations of the Board of Governors of the Federal
Reserve System with respect to required reserves and certain other matters.
Golden West is a legal entity separate and distinct from our subsidiaries. The principal
source of Golden West’s cash flow on an unconsolidated basis has been dividends from its
subsidiaries, interest on investments and proceeds from the issuance of securities. There are some
restrictions and tax considerations described in our most recent Annual Report on Form 10-K that
limit directly or indirectly the amount of dividends our subsidiaries can pay
to Golden West. Various statutory and regulatory restrictions also restrict our subsidiaries
from making investments in, or loans to, us.
In addition, because we are a holding company, the rights of our creditors, including holders
of debt securities, to participate in the assets of any subsidiary upon the latter’s liquidation or
reorganization will be subject to the claims of the subsidiary’s creditors, which will take
priority except to the extent that we may be a creditor with recognized claims against the
subsidiary.
The Federal Deposit Insurance Corporation Improvement Act of 1991 requires a savings
association which does not meet any one of its capital requirements to submit a capital restoration
plan for improving its capital to the OTS. The holding company of a savings association must
guarantee that the savings association will meet its capital restoration plan, subject to certain
limitations. If that guarantee were deemed to be a commitment to maintain capital under the
federal Bankruptcy Code, a claim under that guarantee in a bankruptcy proceeding involving the
holding company would be entitled to a priority over third party creditors of the holding company.
The preceding paragraphs do not describe all of the legal or regulatory considerations
relevant to our business that may be important to you. For a more complete discussion, you should
review the most recent Annual Report of Golden West on Form 10-K.
USE OF PROCEEDS
Except as may otherwise be described in any prospectus supplement relating to an offering of
debt securities, the net proceeds from the sale of the debt securities will be used by Golden West
for general corporate purposes. The net proceeds may be contributed to our subsidiaries in the
form of equity or subordinated debt and may be used by our subsidiaries to fund their lending
operations. Pending a determination of the use of the net proceeds, the proceeds will be invested
in short-term obligations.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratios of earnings to fixed charges for
the periods shown. Earnings represent income from continuing operations before income
taxes, fixed charges, cumulative effect of accounting change and extraordinary items. Fixed
charges include interest expense and amortization of debt expense.
The debt securities will constitute either senior or subordinated debt of Golden West. Senior
debt securities will be issued under a senior debt indenture between Golden West and an entity
identified in the applicable prospectus supplement, as trustee. Likewise, subordinated debt
securities will be issued under a subordinated debt indenture between Golden West and an entity
identified in the applicable prospectus supplement, as trustee. The senior debt indenture and the
subordinated debt indenture are sometimes collectively referred to in this prospectus as the
indentures.
The following description is a summary of selected provisions relating to the debt securities
and the indentures. The summary is not complete. We have filed a form of the senior debt
indenture and a form of the subordinated debt indenture as exhibits to the registration statement
of which this prospectus is a part. You should not rely on this summary because the indentures and
not this summary define your rights as a holder of the debt securities. When the debt securities
are offered in the future, a prospectus supplement will explain the particular terms of those
securities and the extent to which these general provisions may apply.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
General. The debt securities will represent our unsecured senior or subordinated
obligations and may be issued from time to time in one or more series. The indentures do not limit
the amount of debt securities, debentures, notes or other types of indebtedness that we or any of
our subsidiaries may issue nor do they restrict transactions between us and our affiliates or the
payment of dividends or other distributions by us to our stockholders. In addition, other than as
may be set forth herein or in any prospectus supplement, the indentures and the debt securities
will not contain any covenants or other provisions that are intended to afford holders of the debt
securities special protection in the event of either a change of control or a highly leveraged
transaction involving Golden West.
A prospectus supplement relating to any series of debt securities offered by Golden West will
include specific terms relating to the offering. These terms will include some or all of the
following:
•
the title and classification of the debt securities;
•
any limit on the total principal amount of the debt securities;
•
the price or prices at which the debt securities will be issued;
•
the dates on which the debt securities will mature;
•
the interest rate or the method for determining the rate that the debt
securities will bear and the date from which any interest will accrue;
•
the interest payment dates for the debt securities;
•
any mandatory or optional sinking fund or analogous provisions;
•
the place where we will pay, or the method of payment of, principal, premium
and interest on the debt securities;
•
any mandatory or optional redemption periods and prices;
•
the denominations in which we will issue the debt securities;
the currency or currencies in which we will pay principal, premium and
interest on the debt securities;
•
the portion of the principal amount of the debt securities, if other than
the principal amount thereof, payable upon acceleration of maturity thereof;
•
the manner in which we will determine the amounts of principal, premium or
interest payments on the debt securities if these amounts may be determined by
reference to an index or based on a formula;
•
if the Company has elected not to apply the defeasance section of the
indenture to the debt securities;
•
the security registrar and the paying agent for the debt securities;
•
whether the debt securities will be issued in the form of one or more
“global securities”, and if so, the depositary for that security or securities and
information with respect to book-entry procedures;
•
any covenants of Golden West with respect to a series of debt securities; and
•
any other terms of the debt securities, which terms need not be consistent with the indentures.
Unless otherwise indicated in the prospectus supplement, the debt securities will be issued in
registered form without coupons.
A prospectus supplement will also describe any special provisions for the payment of
additional amounts with respect to the debt securities.
We may issue debt securities at a discount below their stated principal amount. Even if we do
not issue the debt securities below their stated principal amount, for United States federal income
tax purposes the debt securities may be deemed to have been issued with a discount because of
certain interest payment characteristics. We will describe in a prospectus supplement the United
States federal income tax considerations applicable to debt securities issued at a discount or
deemed to be issued at a discount, and will describe any special United States federal income tax
considerations that may be applicable to the particular debt securities.
We may structure one or more series of subordinated debt securities so that they qualify as
capital under federal regulations applicable to savings and loan holding companies. We may adopt
this structure whether or not those regulations may be applicable to Golden West at the time of
issuance.
The debt securities will represent our general unsecured obligations. Since we are a holding
company, our ability to meet our obligations under the indentures and the debt securities will be
dependent on the earnings and cash flows of our subsidiaries and the ability of our subsidiaries to
pay dividends or to advance funds to us.
Absence Of Restrictive Covenants And Event Risk Provisions With Respect To Debt
Securities. Unless and to the extent otherwise specified in this prospectus or a prospectus
supplement, the indentures do not:
•
restrict the Company from incurring, assuming or becoming liable for any
type of debt or other obligations, from creating liens on its property (except that
under the senior debt indenturethe Company is restricted in its ability to incur
or permit liens to exist on the capital stock of the World Subsidiaries), from
paying dividends or making distributions on its capital stock or
purchasing or redeeming its capital stock or from disposing of capital stock of
subsidiaries (except that under the senior debt indenturethe Company is restricted
in its ability to dispose of the capital stock of the World Subsidiaries);
•
require the maintenance of any financial ratios or specified levels of net
worth or liquidity; or
•
contain any provisions which would require that the Company repurchase or
redeem or otherwise modify the terms of any of its debt securities upon a change in
control or other events involving the Company which may adversely affect the
creditworthiness of the debt securities.
Consolidation, Merger And Sale Of Assets. We may consolidate with, merge into, or
convey or transfer our assets substantially as an entirety to, any person that is a corporation,
partnership or trust organized and existing under the laws of the United States of America or any
State thereof or the District of Columbia without the consent of the holders of any of the
outstanding debt securities under either indenture. However, certain conditions must be met,
including that any successor person must assume our obligations under the debt securities and under
the indentures and that no default shall have occurred and be continuing.
Events of Default. If an event of default under either indenture shall have occurred
and is continuing with respect to debt securities of any series, the trustee or the holders of at
least 25% in aggregate principal amount of the outstanding securities of that series, by notice in
writing given to the Company (and to the trustee if given by the holders), may declare the
principal amount (or, if the outstanding securities of that series are original issue discount
securities, the portion of the principal amount as may be specified in the terms of that series) of
and all accrued but unpaid interest on all the debt securities of that series to be due and payable
immediately. At any time after a declaration of acceleration with respect to debt securities of
any series has been made, but before a judgment or decree for payment of money has been obtained by
the trustee, the holders of a majority in principal amount of the outstanding debt securities of
that series may, under certain circumstances, rescind and annul that acceleration.
The indentures provide that the trustee, within 90 days after the occurrence of a default with
respect to any series of debt securities, shall give to the holders of debt securities of that
series notice of all uncured defaults known to it. However, except in the case of default in the
payment of principal of (or premium, if any) or interest, if any, on any debt security, or the
payment of any sinking fund installment with respect to the debt securities of such series, the
trustee shall be protected in withholding that notice if it in good faith determines that the
withholding of that notice is in the interest of the holders of such series of debt securities.
We will be required to file with the trustee annually a written statement as to the
fulfillment of our obligations under the indentures. The indentures provide that, subject to the
duty of the trustee during certain defaults to act with the required standard of care, the trustee
will be under no obligation to exercise any of its rights or powers under the indentures at the
request or direction of any of the holders, unless those holders offer the trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction. Subject to applicable law and certain
provisions of the indentures, including the indemnity requirement, the holders of a majority in
principal amount of the outstanding debt securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to the trustee, or
exercising any trust or power conferred on the trustee, with respect to the debt securities of that
series.
Modification And Waiver. We may enter into modifications and amendments with the
trustee under either indenture with the consent of the holders of not less than a majority in
aggregate principal amount of the outstanding debt securities of each series affected by that
modification or amendment. However, no modification or amendment may, without the consent of the
holder of each outstanding security affected thereby:
•
change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security;
reduce the principal amount of any debt security or the rate of interest
thereon or any premium payable upon the redemption thereof;
•
change any obligation of the Company to pay additional amounts;
•
reduce the amount of the principal of an original issue discount security
payable upon acceleration of the maturity thereof;
•
change the coin or currency in which any debt security or any premium or
interest thereon is payable;
•
impair the right to institute suit for the enforcement of any payment on or
with respect to any debt security;
•
reduce the percentage in principal amount of the outstanding securities of
any series, the consent of whose holders is required for modification or amendment
of the applicable indenture or for waiver of compliance with certain provisions of
the indenture or for waiver of certain defaults;
•
reduce the requirements contained in the indenture for quorum or voting;
•
change any obligation of the Company to maintain an office or agency in the
places and for the purposes required by the indenture;
•
solely with respect to the subordinated debt indenture, modify the terms
relating to subordination in a manner adverse to the holders of subordinated debt
securities issued under such indenture;
•
adversely affect the right of repayment, if any, of the debt securities at
the option of the holders thereof; or
•
modify provisions in the indenture relating to the percentage of holders
required to consent in order to modify or amend the indenture, except to increase
such required percentage or to provide that certain other provisions cannot be
modified or waived without the consent of each holder.
The holders of not less than a majority in aggregate principal amount of the outstanding debt
securities of any series may, on behalf of all holders of debt securities of that series, waive any
past default and its consequences under the applicable indenture with respect to debt securities of
that series, except a default:
•
in the payment of principal of (or premium, if any) or any interest on any
debt security of that series; and
•
in respect of a covenant or provision of the applicable indenture which
cannot be modified or amended without the consent of the holder of each outstanding
security of the series affected.
Each indenture provides that in determining whether the holders of the requisite principal
amount of the outstanding debt securities have given any request, demand, authorization, direction,
notice, consent or waiver thereunder or whether a quorum is present at a meeting of holders of debt
securities:
•
the principal amount of an original issue discount security that shall be
deemed to be outstanding shall be the amount of the principal thereof that would be
due and payable as of the date of such determination upon acceleration of the
maturity thereof; and
the principal amount of a debt security denominated in a foreign currency or
a composite currency shall be the U.S. dollar equivalent, determined as of the date
of original issuance of that debt security by the Company in good faith, of the
principal amount of the debt security (or, in the case of an original issue
discount security, the U.S. dollar equivalent, determined as of the date of
original issuance of the debt security, of the amount determined as provided in the
preceding bullet point); and
•
except as specified in the applicable indenture, debt securities owned by
the Company or any other obligor upon the debt securities or any affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
outstanding.
Defeasance. Each indenture provides, unless we elect otherwise pursuant to Section
301 of the applicable indenture with respect to the debt securities of any series thereunder, that
we may elect to defease and be discharged from any and all obligations with respect to those debt
securities. To effect that defeasance, the indentures require that we deposit with the trustee, in
trust for that purpose, money sufficient to pay the principal of and any premium and interest on
those debt securities, and any mandatory sinking fund or analogous payments, on the applicable
scheduled due dates and any amounts that may be payable at the option of a holder on the applicable
due date. We may also deposit with the trustee U.S. government obligations that provide for
payments sufficient to make the defeasance payments described above. We may defease the debt
securities only if, among other things, we deliver to the trustee an opinion of counsel to the
effect that the holders of those debt securities will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred. The opinion must refer to and be based upon a ruling of the
Internal Revenue Service or a change in applicable federal income tax law occurring after the date
of the applicable indenture. The prospectus supplement may further describe the provisions, if
any, permitting defeasance with respect to the debt securities of a particular series.
Concerning the Trustee. The trustee under either indenture may from time to time make
loans to us and our subsidiaries and perform other services for us and our subsidiaries in the
normal course of its business. Either trustee may be deemed to have a conflicting interest and may
be required to resign as trustee if at the time of certain defaults under the applicable indenture
the trustee is a creditor of ours.
Governing Law. The indentures and the debt securities will be governed by, and
construed in accordance with, the laws of the State of California. The rights, duties, privileges
and immunities of the trustee shall be governed by the laws of the State of New York.
Book-Entry, Delivery And Form.
General. Unless otherwise specified in the applicable pricing supplement, the debt securities
will be issued in fully registered form without coupons and will be evidenced by one or more global
securities that will be deposited with, or on behalf of, The Depository Trust Company (“DTC”) or
any successor to DTC, as depositary, and registered in the name of Cede & Co., the nominee of DTC.
Beneficial interests in the debt securities will be represented through book-entry accounts of
financial institutions acting on behalf of beneficial owners as direct and indirect participants in
DTC. Investors may elect to hold their interest in the debt securities through DTC, in the United
States, or through Clearstream Banking S.A. (“Clearstream”) or Euroclear Bank S.A./N.V., as
operator of the Euroclear System (“Euroclear”), directly if they are participants in those systems, or
indirectly through organizations which are participants in those systems. Clearstream and
Euroclear will hold interests on behalf of their participants through customers’ securities
accounts in Clearstream’s and Euroclear’s names on the books of their respective depositaries,
which in turn will hold these interests in customers’ securities accounts in the U.S. depositaries’
names on DTC’s books.
Unless it is exchanged in whole or in part for securities in definitive form, no global
security may be transferred except as a whole by the depositary to a nominee of the depositary.
The global securities will be exchangeable for securities in certificated registered form of like
tenor and of an equal aggregate principal amount only if:
DTC notifies us that it is unwilling or unable to continue as depositary for
the global securities or at any time DTC ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, if so required by law, and we have not
appointed a successor depositary within 90 days of such notification or of us
becoming aware of DTC’s ceasing to be so registered, as the case may be;
•
we determine, in our sole discretion, that the global securities will be
exchangeable for securities in certificated registered form; or
•
an event of default has occurred and is continuing with respect to
the securities of such series.
If the global securities are exchangeable pursuant to the preceding sentence, they will be
exchangeable for securities registered in the name or names of such person or persons as DTC shall
instruct the trustee. It is expected that these instructions may be based upon directions received
by DTC from its participants with respect to ownership of beneficial interests in the global
securities.
All information in this prospectus concerning DTC, Clearstream and Euroclear has been obtained
from sources we believe to be reliable, but we take no responsibility for the accuracy thereof.
DTC. DTC has advised that it is a limited-purpose trust company organized under the New
York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform
Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of
the Securities Exchange Act of 1934. DTC holds securities that its participants, called direct
participants, deposit with DTC. DTC also facilitates the post-trade settlement among direct
participants of sales and other securities transactions in deposited securities through electronic
computerized book-entry transfers and pledges between direct participants’ accounts. This
eliminates the need for physical movement of securities certificates. Direct participants in DTC
include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations, and may include the underwriters of debt securities
offered by the Company. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing
Corporation (“DTCC”). DTCC, in turn, is owned by a number of direct participants of DTC and
members of the National Securities Clearing Corporation, Fixed Income Clearing Corporation, and
Emerging Markets Clearing Corporation, each of which is a subsidiary of DTCC, as well as by the New
York Stock Exchange, Inc., the American Stock Exchange LLC and the National Association of
Securities Dealers, Inc. Access to the DTC system is also available to others such as both U.S.
and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that
clear through or maintain a custodial relationship with a direct participant, either directly or
indirectly. The DTC rules applicable to its participants are on file with the SEC.
Purchases of interests in the global securities under DTC’s system must be made by or through
direct participants, which will receive a credit for those interests on DTC’s records. The
ownership interest of each actual purchaser of interests in the global securities, each called a
beneficial owner, is in turn to be recorded on the direct and indirect participants’ records.
Beneficial owners will not receive written confirmation from DTC of their purchase, but beneficial
owners are expected to receive written confirmations providing details of the transaction, as well
as periodic statements of their holdings, from the direct or indirect participant through which the
beneficial owner entered into the transaction. Transfers of ownership interests in the global
securities are to be accomplished by entries made on the books of participants acting on behalf of
beneficial owners. Beneficial owners will not receive certificates representing their ownership
interests in the global securities, except in the event that use of the book-entry system for the
debt securities is discontinued.
To facilitate subsequent transfers, all global securities deposited by direct participants
with DTC are registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as
may be requested by an authorized representative of DTC. The deposit of global securities with DTC
and their registration in the name of Cede & Co. or such other nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual beneficial owners of the interests in the
global securities; DTC’s records reflect only the identity of the direct participants to whose
accounts interests in the global securities are credited, which may or may not be the beneficial
owners. The direct and indirect participants will remain responsible for keeping account of
their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to participants, by direct participants
to indirect participants, and by direct participants and indirect participants to beneficial
owners, will be governed by arrangements among them, subject to any statutory or regulatory
requirements that may be in effect from time to time.
Payments of interest, premium, if any, and any other distributions on the debt securities will
be made to Cede & Co. or such other nominee as may be requested by an authorized representative of
DTC. Neither we, the trustee, nor any other agent of ours or agent of the trustee will have any
responsibility or liability for any aspect of the records relating to, or payments made on account
of, beneficial ownership interests in global securities or for maintaining, supervising or
reviewing any records relating to the beneficial ownership interests. DTC’s practice is to credit
the accounts of the direct participants upon DTC’s receipt of funds and corresponding detail
information in amounts proportionate to their respective holdings as shown on the records of DTC.
Payments by participants to beneficial owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of customers in bearer
form or registered in “street name,” and will be the responsibility of the participants. Payment
of any applicable interest, premium, if any, and any other distributions on the debt securities to Cede & Co. (or
such other nominee as may be requested by an authorized representative of DTC) is our
responsibility or that of our paying agent, disbursement of such payments to direct participants
will be DTC’s responsibility, and disbursement of such payments to the beneficial owners will be
the participants’ responsibility.
If applicable, redemption notices shall be sent to DTC. If less than all of the debt
securities within a series are being redeemed, DTC’s practice is to determine by lot the amount of
the interest of each direct participant in such series to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the debt securities. Under
its usual procedures, DTC mails an omnibus proxy to the issuer as soon as possible after the record
date. The omnibus proxy assigns Cede & Co.’s consenting or voting rights to those direct
participants to whose accounts interests in the debt securities are credited on the record date
(identified in a listing attached to the omnibus proxy).
DTC may discontinue providing its services as depositary with respect to the debt securities
at any time by giving reasonable notice to us or our paying agent. Under such circumstances, in
the event that a successor depositary is not appointed as described above, certificated securities
will be delivered.
Clearstream.
Clearstream has advised that it is incorporated under the laws of Luxembourg.
Clearstream was formed in January 2000 by the merger of Cedel International and Deutsche Boerse
Clearing and was fully acquired by the Deutsche Boerse Group in July 2002. Clearstream holds
securities for its customers and facilitates the clearance and settlement of securities
transactions through electronic book-entry changes in accounts of Clearstream customers, thereby
eliminating the need for physical movement of certificates. Clearstream provides, among other
things, services for safekeeping, administration, clearance and settlement of internationally
traded securities and securities lending and borrowing. Clearstream is registered as a bank in
Luxembourg and as such is subject to regulation by the Commission du Surveillance du Secteur
Financier, which supervises Luxembourg banks. Clearstream customers are worldwide financial
institutions including underwriters, securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations, and may include the underwriters of debt
securities offered by the Company. Clearstream’s U.S. customers are limited to securities brokers
and dealers and banks. Indirect access to Clearstream is also available to other institutions
that clear through or maintain a custodial relationship with an account holder of Clearstream.
Clearstream has established an electronic bridge with Euroclear in Brussels to facilitate
settlement of trades between Clearstream and Euroclear.
Distributions with respect to debt securities held beneficially through Clearstream will be
credited to the cash accounts of Clearstream participants in accordance with its rules and
procedures, to the extent received by the U.S. depositary for Clearstream.
Euroclear. Euroclear was created in 1968 to hold securities for its participants and to clear
and settle transactions between its participants through simultaneous electronic book-entry
delivery against payment, thereby
eliminating the need for physical movement of certificates and any risk from lack of
simultaneous delivery of securities and cash.
Euroclear provides various other services, including securities lending and borrowing, and
interacts with domestic markets in several countries. Euroclear is operated by Euroclear Bank
S.A./N.V., referred to as the “Euroclear Operator,” under contract with Euroclear plc, a U.K.
corporation. All operations are conducted by the Euroclear Operator, and all Euroclear securities
clearance accounts and Euroclear cash accounts are accounts with the Euroclear Operator. The
Euroclear Operator establishes policy for Euroclear on behalf of Euroclear participants. Euroclear
participants include banks (including central banks), securities brokers and dealers and other
professional financial intermediaries, and may include the underwriters of debt securities offered
by the Company. Indirect access to Euroclear is also available to others that clear through or
maintain a custodial relationship with a Euroclear participant, either directly or indirectly.
The Euroclear Operator is based in Brussels, Belgium, and is regulated and examined as a
Belgian bank by the Belgian Banking and Finance Commission. The Euroclear Operator is overseen as
the operator of a securities settlement system by the National Bank of Belgium. Securities
clearance accounts and cash accounts with the Euroclear Operator are governed by the Terms and
Conditions Governing Use of Euroclear and the related Operating Procedures of the Euroclear System
(the “Terms and Conditions”), and applicable Belgian law. The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities and cash from
Euroclear, and receipt of payments with respect to securities in Euroclear. All securities in
Euroclear are held on a fungible basis without attribution of specific certificates to specific
securities clearance accounts. The Euroclear Operator acts under the Terms and Conditions only on
behalf of Euroclear participants, and has no record of or relationship with persons holding
interests in securities through Euroclear participants.
Distributions with respect to debt securities held beneficially through Euroclear will be
credited to the cash accounts of Euroclear participants in accordance with the Terms and
Conditions, to the extent received by the U.S. depositary for Euroclear.
Euroclear has further advised that investors that acquire, hold and transfer interests in
the debt securities by book-entry through accounts with the Euroclear Operator or any other
securities intermediary are subject to the laws and contractual provisions governing their
relationship with their intermediary, as well as the laws and contractual provisions governing the
relationship between such an intermediary and each other intermediary, if any, standing between
themselves and the global securities.
Global Clearance and Settlement. Secondary market trading between DTC participants will occur
in the ordinary way in accordance with DTC rules and will be settled in immediately available funds
using DTC’s Same-Day Funds Settlement System.
Secondary market trading between Clearstream participants and/or Euroclear participants will
occur in the ordinary way in accordance with the applicable rules and operating procedures of
Clearstream and Euroclear and will be settled using the procedures applicable to conventional
eurobonds in immediately available funds.
Cross-market transfers between persons holding directly or indirectly through DTC, on the one
hand, and directly or indirectly through Clearstream participants or Euroclear participants, on the
other, will be effected through DTC in accordance with DTC rules on behalf of the relevant European
international clearing system by its U.S. depositary; however, such cross-market transactions will
require delivery of instructions to the relevant European international clearing system by the
counterparts in such system in accordance with its rules and procedures and within its established
deadlines (European time). The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take
action to effect final settlement on its behalf by delivering or receiving debt securities through
DTC, and making or receiving payment in accordance with normal procedures for same-day funds
settlement applicable to DTC. Clearstream participants and Euroclear participants may not deliver
instructions directly to Clearstream’s or Euroclear’s respective U.S. depositary.
Because of time-zone differences, credits of interests in a global security received through
Clearstream or Euroclear as a result of a transaction with a DTC participant will be made during
subsequent securities settlement
processing and will be credited the business day following the DTC settlement date. Such
credits or any transactions in such global security settled during such processing will be reported
to the relevant Euroclear participants or Clearstream participants on such business day. Cash
received in Clearstream or Euroclear as a result of sales of interests in a global security by or
through a Clearstream participant or a Euroclear participant to a DTC participant will be received
with value on the DTC settlement date but will be available in the relevant Clearstream or
Euroclear cash account only as of the business day following settlement in DTC.
Although DTC, Euroclear and Clearstream have agreed to the procedures described above in order
to facilitate transfers of debt securities among participants of DTC, Euroclear and Clearstream,
they are under no obligation to perform or continue to perform such procedures and such procedures
may be modified or discontinued at any time. Neither we nor the Trustee will have any
responsibility for the performance by DTC, Euroclear or Clearstream or their respective direct or
indirect participants of their obligations under the rules and procedures governing their
operations.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
General. We may issue senior debt securities under the senior debt indenture. As to
the right of payment of principal (and any premium) and interest, each series of senior debt
securities will rank equally with each other series issued under the senior debt indenture and will
rank senior to all subordinated debt securities that may be issued. Except as may be described in
this prospectus or a prospectus supplement, the indentures do not contain any covenants
specifically designed to protect holders of the debt securities against a reduction in the
creditworthiness of the Company in the event of a highly leveraged transaction or to prohibit
other transactions which may adversely affect holders of the senior debt securities.
Events of Default. The senior indenture defines an event of default with respect to
any series of debt securities thereunder as being any of the following:
•
default in the payment of any interest on any senior debt security when due
and payable, and continuance of such default for a period of 30 days; or
•
default in the payment of the principal of or any premium on any senior debt
security at maturity; or
•
default in the deposit of any sinking fund payment, when and as due by the
terms of any series of senior debt securities; or
•
default in the performance, or breach, of any covenant or warranty of the
Company in the senior debt indenture (other than any covenant or warranty otherwise
specifically dealt with in this section), and continuance of that default or breach
for a period of 60 days after the trustee or the holders of not less than 25% in
principal amount of the outstanding debt securities of such series have given
written notice to the Company of such default or breach; or
•
if any event of default with respect to any indebtedness of the Company or
the World Subsidiaries for money borrowed, whether now existing or hereafter
created, shall occur and result in indebtedness in a principal amount in excess of
$10,000,000 becoming or being declared due and payable prior to the date on which
it would otherwise become due and payable, and that acceleration shall not have
been rescinded or annulled within a period of 30 days after the trustee or holders
of not less than 25% in principal amount of the outstanding senior debt securities
of such series have given written notice to the Company; or
•
certain events of bankruptcy, insolvency or reorganization involving the
Company or the World Subsidiaries.
Senior Indenture Covenants. Subject to certain exceptions, so long as any of the
senior debt securities are outstanding, we will not, nor will we permit any of the World
Subsidiaries to, sell or otherwise dispose of any shares of, securities convertible into, or
options, warrants or rights to subscribe for or purchase shares of, voting stock of those
subsidiaries, nor will we permit those subsidiaries to issue any shares of, or securities
convertible into, or options, warrants or rights to subscribe for or purchase shares of, voting
stock of those subsidiaries (other than sales of directors’ qualifying shares) unless we will own,
directly or indirectly, at least 80% of the issued and outstanding voting stock of each of the
World Subsidiaries after giving effect to that transaction. Furthermore, we will not permit those
subsidiaries to:
•
merge or consolidate with or into any corporation (other than Golden West),
unless at least 80% of the surviving corporation’s issued and outstanding voting
stock is owned, directly or indirectly, by us; or
•
lease, sell, assign or transfer all or substantially all of its properties
and assets to any corporation or other person (other than Golden West), unless at
least 80% of the issued and outstanding voting stock of that corporation or other
person is owned, directly or indirectly, by us. However, this covenant shall not
prohibit us or the World Subsidiaries from selling or transferring assets pursuant
to any securitization transaction.
Furthermore, for so long as any of the senior debt securities are outstanding, we will not,
nor will we permit the World Subsidiaries to, incur debt secured by any shares of voting stock of
the World Subsidiaries (or securities convertible into, or options, warrants or rights to subscribe
for or purchase shares of that voting stock) without making effective provision for securing the
senior debt securities of all series equally and ratably with that secured debt. However, this
covenant will not apply to the extent that we continue to own at least 80% of the issued and
outstanding voting stock of each of the World Subsidiaries after treating that encumbrance as a
transfer of those shares to the secured party.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordination. The payment of principal, premium, if any, and interest in respect of
the subordinated debt securities is expressly subordinated, to the extent set forth in the
subordinated debt indenture, to all Senior Indebtedness (as defined below) which may at any time
and from time to time be outstanding.
As used in the subordinated debt indenture, “Senior Indebtedness” means all Debt of Golden
West, except Subordinated Indebtedness and Junior Subordinated Indebtedness. “Debt” of any person
means the principal of and premium, if any, and interest on the following:
•
all indebtedness of that person (including indebtedness of others guaranteed
by that person), whether outstanding on the date of the indenture or thereafter
created, incurred or assumed, which is (A) for money borrowed, whether or not
evidenced by bonds, debentures, notes or other written instruments or (B) evidenced
by a note or similar instrument given in connection with the acquisition of any
businesses, properties or assets of any kind;
•
obligations of, or any obligations guaranteed by, that person as lessee
under leases required to be capitalized on the balance sheet of the lessee under
generally accepted accounting principles and leases of property or assets made as
part of any sale and lease-back transaction to which that person is a party;
•
obligations of that person under letters of credit;
•
any indebtedness of that person under, or other obligations of that person
to make payment pursuant to, the terms of commodity contracts, interest rate and
currency swap agreements, cap,
floor and collar agreements, currency spot and forward contracts, and other similar
agreements or arrangements designed to protect against fluctuations in currency
exchange or interest rates; and
•
amendments, renewals, extensions, modifications and refundings of any such
indebtedness or obligation.
“Subordinated Indebtedness” is defined in the subordinated debt indenture as all Debt of the
Company, other than Junior Subordinated Indebtedness, which is subordinate and junior in right with
respect to general assets of the Company to Senior Indebtedness, and includes the subordinated debt
securities and any Debt on a parity with any of the subordinated debt securities offered hereby.
“Junior Subordinated Indebtedness” is defined in the subordinated debt indenture as all Debt of the
Company which is subordinate and junior in right with respect to general assets of the Company to
all other Debt of the Company (including, without limitation, Senior Indebtedness and Subordinated
Indebtedness). The subordinated debt indenture does not limit the amount of our Senior
Indebtedness.
In the event of any receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, whether or not pursuant to bankruptcy laws, sale of all or substantially
all of the assets (except pursuant to Section 801 of the subordinated debt indenture), dissolution,
liquidation or any other marshalling of the assets and liabilities of the Company, no amount shall
be paid by the Company in respect of the principal, premium, if any, or interest on the
subordinated debt securities offered hereby unless and until all Senior Indebtedness shall have
been paid in full together with all interest thereon and all other amounts payable in respect
thereof.
The subordinated debt indenture also provides that, in the event of any default in the payment
of any Senior Indebtedness and during the continuance of any such default, no amount shall be paid
by the Company in respect of the principal, premium, if any, or interest on the subordinated debt
securities.
The prospectus supplement respecting any series of subordinated debt securities will set forth
any subordination provisions applicable to that series in addition to or different from those
described above.
By reason of such subordination, in the event of our insolvency, holders of Senior
Indebtedness and holders of other obligations of ours that are not subordinated to Senior
Indebtedness may receive more, ratably, than holders of the subordinated debt securities.
Events of Default. The subordinated debt indenture defines an event of default with
respect to any series of subordinated debt securities thereunder only as certain events of
bankruptcy, insolvency or reorganization involving the Company.
The subordinated debt indenture does not provide for any right of acceleration of the payment
of principal of the subordinated debt securities of any series upon a default in the payment of
principal of (or premium, if any) or interest, if any, on the subordinated debt securities of that
series, or in the performance of any covenant or agreement in the subordinated debt indenture or in
the terms of the subordinated debt securities of that series. In the event of any default in the
payment of the principal of or premium, if any, interest (and, in the case of a default in the
payment of interest, continuance of such default for 30 days), or any sinking fund deposit with
respect to the subordinated debt securities of that series (including a default in payment at the
stated maturity of the subordinated debt securities of that series), the subordinated debt
indenture requires that the Company, upon demand of the trustee, pay to the trustee for the benefit
of the holders of the subordinated debt securities of that series, the whole amount then due and
payable on the subordinated debt securities of that series for principal (and premium, if any) and
any sinking fund installment and interest, if any. The subordinated debt indenture provides that
if the Company fails to pay that amount upon demand, the trustee may, among other things, institute
a judicial proceeding for the collection thereof. Any additional events of default with respect to
any series of subordinated debt securities, including any related right of acceleration, will be
specified in the prospectus supplement relating to that series.
We may sell any of the debt securities offered hereby in any one or more of the following ways
from time to time:
•
through agents;
•
to or through underwriters;
•
through dealers; and
•
directly by us.
We may distribute the debt securities from time to time in one or more transactions at a fixed
price or prices, which may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
We may designate agents from time to time who will solicit offers to purchase securities from
time to time. We will identify any such agent, and any commissions payable by the Company to such
agent, in the applicable prospectus supplement. Unless otherwise indicated in that prospectus
supplement, any such agent will be acting on a reasonable best efforts basis for the period of its
appointment. Any such agent may be deemed to be an underwriter, as that term is defined in the
Securities Act of 1933, of the debt securities so offered and sold.
If securities are sold by means of an underwritten offering, we will execute an underwriting
agreement with an underwriter or underwriters at the time an agreement for that sale is reached,
and we will set forth the names of the specific managing underwriter or underwriters, as well as
any other underwriters, the respective amounts underwritten and the terms of the transaction,
including commissions, discounts and any other compensation to be paid to the underwriters and
dealers, if any, in the applicable prospectus supplement. The maximum discount or commission that
may be received by any member of the National Association of Securities Dealers, Inc. for sales of
the debt securities will not exceed 8.00%. If underwriters are utilized in the sale of the debt
securities, the underwriters will acquire the debt securities for their own account and they may
resell the debt securities from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by the underwriters
at the time of sale. Either underwriting syndicates represented by managing underwriters or one or
more underwriters directly may offer securities to you. If any underwriter or underwriters are
utilized in the sale of the debt securities, unless otherwise indicated in the applicable
prospectus supplement, the underwriting agreement will provide that the obligations of the
underwriters are subject to certain conditions precedent and that the underwriters with respect to
a sale of the debt securities will be obligated to purchase all of those securities if any are
purchased.
We may grant to the underwriters options to purchase additional securities to cover
over-allotments, if any, at the initial public offering price (with additional underwriting
commissions or discounts), as may be set forth in the prospectus supplement relating thereto. If
we grant any over-allotment option, the terms of such over-allotment option will be set forth in
the prospectus supplement for such securities.
If a dealer is utilized in the sale of the debt securities in respect of which this prospectus
is delivered, the Company will sell the debt securities to the dealer as principal. The dealer may
then resell the debt securities to the public at varying prices to be determined by the dealer at
the time of resale. Any such dealer may be deemed to be an underwriter, as that term is defined in
the Securities Act of 1933, of the debt securities so offered and sold. We will set forth the name
of the dealer and the terms of the transaction in the related prospectus supplement.
We may solicit offers to purchase debt securities directly from institutional investors and we
may sell securities directly to institutional investors or others. Those parties may be deemed to
be underwriters within the
meaning of the Securities Act of 1933 with respect to any resale of those debt securities. We
will describe the terms of any sales in the related prospectus supplement.
If so indicated in the applicable prospectus supplement, we may authorize agents and
underwriters to solicit offers by certain institutions to purchase securities from us at the public
offering price set forth in the applicable prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on the date or dates stated in the applicable
prospectus supplement. Delayed delivery contracts will be subject to only those conditions set
forth in the applicable prospectus supplement. A commission indicated in the applicable prospectus
supplement will be paid to underwriters and agents soliciting purchases of securities pursuant to
delayed delivery contracts accepted by the Company.
Agents, underwriters and dealers may be entitled under relevant agreements with the Company to
indemnification by the Company against certain liabilities, including liabilities under the
Securities Act of 1933, or to contribution with respect to payments which the agents, underwriters
and dealers may be required to make in respect thereof.
Each series of debt securities will be a new issue and will have no established trading
market. We may elect to list any series of debt securities on an exchange but, unless otherwise
specified in the applicable prospectus supplement, we will not be obligated to do so. We cannot
assure you as to the liquidity of the trading market for any of the debt securities.
Agents, underwriters and dealers and their affiliates may be customers of, engage in
transactions with, or perform services for, us and our subsidiaries in the ordinary course of
business.
VALIDITY OF SECURITIES
Orrick, Herrington & Sutcliffe LLP, San Francisco, California, will pass upon the validity of
the debt securities for us and unless otherwise provided in the applicable prospectus supplement,
Gibson, Dunn & Crutcher LLP will pass upon certain legal matters for any agents, dealers or
underwriters. Gibson, Dunn & Crutcher LLP represents us and certain of our other subsidiaries in
other legal matters.
EXPERTS
The consolidated financial statements and management’s report on the effectiveness of internal
control over financial reporting incorporated in this prospectus by reference from the Company’s
Annual Report on Form 10-K for the year ended December 31, 2004 have been audited by Deloitte &
Touche LLP, an independent registered public accounting firm, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in reliance upon the reports of
such firm given upon their authority as experts in accounting and auditing.
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is a statement of the expenses (all of which are estimated) to be incurred by
Golden West in connection with a distribution of an assumed amount of $2 billion of securities
registered under this registration statement:
Registration Fee
$
214,000
Legal fees and expenses
85,000
Accounting fees and expenses
125,000
Printing expenses
30,000
Trustee fees and expenses
50,000
Miscellaneous expenses
25,000
Total
$
529,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by Section 145 of the Delaware Corporation Law, the bylaws of the Company
provide for indemnification of directors and officers in certain cases. A director or officer of
the Company (i) must be indemnified by the Company for all expenses of litigation or other legal
proceedings when he or she is successful on the merits or otherwise in such litigation or
proceedings, (ii) must be indemnified by the Company for the expenses, judgments, fines and amounts
paid in settlement of litigation or proceedings (other than a derivative action), even if he or she
is not successful, if such director acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interest of the Company (and, in the case of a
criminal proceeding, had no reasonable cause to believe his or her conduct was not lawful), and
(iii) must be indemnified by the Company for expenses of a derivative action, even if he or she is
not successful, if such director acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Company, provided that no indemnification may
be made in the case of a derivative action if the person is judged liable to the Company, unless a
court determines that, despite such adjudication but in view of the circumstances, he or she is
entitled to indemnification of such expenses.
The bylaws of the Company further provide that the Company may purchase insurance on behalf of
its directors and officers whether or not it would have the power to indemnify them against such
liability.
Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Debt Trustee (to be filed prior to any issuance
of Debt Securities).
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus filed with
the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) shall not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Securities and Exchange Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the registration statement.
That, for the purpose of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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.
That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of this registration statement as of the date the filed prospectus was deemed part of and
included in this registration statement; and
(B) 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 of 1933 shall be
deemed to be part of and included in this 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 this registration statement relating to the securities in this
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 this registration
statement or made in a document incorporated or deemed incorporated by reference into this
registration statement or prospectus that is part of this 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 this registration statement or prospectus that was part of this
registration statement or made in any such document immediately prior to such effective date.
That, for the purpose of determining liability of the registrant under the Securities Act of
1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
That, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
To file an application for the purpose of determining the eligibility of the trustee to act
under Subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules
and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the
Trust Indenture Act of 1939.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
provisions set forth in the response to Item 15 or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the
final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Oakland, State of California, on the
1st day of December, 2005.