As
filed with the Securities and Exchange Commission on December 3,
2009.
Registration
No. 333-________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
_____________________
AIR
METHODS CORPORATION
And
the Guarantors named in footnote (1) of
CALCULATION
OF REGISTRATION FEE below
(Exact
name of registrant as specified in its charter)
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Delaware
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84-0915893
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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7301
South Peoria
Englewood,
Colorado 80112
(303)
792-7400
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Aaron
D. Todd, Chief
Executive Officer
Air Methods
Corporation
7301
South Peoria
Englewood,
Colorado 80112
(303)
792-7400
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
With a
copy to:
Lester
R. Woodward, Esq.
Davis
Graham & Stubbs LLP
1550
Seventeenth Street, Suite 500
Denver,
Colorado 80202
Telephone:
(303) 892-9400
_____________________
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the
effective date of this registration statement as determined by market
conditions.
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. x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. 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. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large
accelerated filer o
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Accelerated
filer x
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Non-accelerated
filer o
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Smaller
reporting company o
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(Do
not check if a smaller reporting
company)
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___________________________
CALCULATION
OF REGISTRATION FEE
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Title
of each class of
securities
to be registered (2)
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Proposed
Maximum Aggregate Offering Price (3)
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Amount
of
registration
fee (4)
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Senior
Debt Securities
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Subordinated
Debt Securities
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Common
Stock, par value $0.06 per share
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Preferred
Stock, par value $1.00 per share
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Warrants
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Guarantees
of Debt Securities
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Rights
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Units
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Depositary
Shares
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Common
Stock
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Total
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$200,000,000
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$11,160.00
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(1) Rocky
Mountain Holdings, L.L.C., a Delaware limited liability company (I.R.S. Employer
Identification No. 87-0533822), Mercy Air Service, Inc., a California
corporation (I.R.S. Employer Identification No. 33-0320626), LifeNet, Inc., a
Missouri corporation (I.R.S. Employer Identification No. 43-1883381), and FSS
Airholdings, Inc., a Delaware corporation (I.R.S. Employer Identification No.
25-1413123).
(2) Any
securities registered hereunder may be sold separately or as units with other
securities registered hereunder. The securities which may be offered pursuant to
this Registration Statement include, pursuant to Rule 416 of the Securities Act
of 1933, as amended (the “Securities Act”), such additional number of shares of
the registrant’s common stock that may become issuable as a result of any stock
split, stock dividends or similar event. In the event the registrant elects to
offer to the public fractional interests in its shares of preferred stock
registered hereunder, depositary shares, evidenced by depository receipts issued
pursuant to a deposit agreement, will be distributed to those persons purchasing
fractional interests and the shares of preferred stock will be issued to the
depository under any such agreement.
(3)
Represents the initial offering price of all securities sold up to an aggregate
public offering price not to exceed $200,000,000.00 or the equivalent thereof in
foreign currencies, foreign currency units or composite currencies by the
Registrant.
(4)
Pursuant to Rule 457(o) under the Securities Act, the registration fee has been
calculated on the basis of the maximum aggregate offering price and the number
of securities being registered has been omitted.
THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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The
information in this prospectus is not complete and may be
changed. Air Methods Corporation may not sell these securities
pursuant to this prospectus until the registration statement filed with
the Securities and Exchange Commission becomes effective. This
prospectus is not an offer to sell these securities and Air Methods
Corporation is not soliciting offers to buy these securities in any state
where the offer or sale is not
permitted.
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PROSPECTUS
Subject
to Completion, dated December 3, 2009
$200,000,000
Senior
Debt Securities
Subordinated
Debt Securities
Common
Stock
Preferred
Stock
Guarantees
of Debt Securities
Warrants
Rights
Units
Depositary
Shares
_____________________
Under
this shelf registration process, Air Methods Corporation (“Air Methods,” “we,”
“us,” or “our”) may offer and sell from time to time up to $200,000,000 million
of our senior and subordinated debt securities, common stock, $0.06 par value,
preferred stock, $1.00 par value, warrants to purchase any of the other
securities that may be sold under this prospectus, senior or subordinated
unsecured guarantees of debt securities, rights to purchase common stock,
preferred stock, and/or senior or subordinated debt securities, depositary
shares and units consisting of two or more of these classes or series of
securities, securities that may be convertible or exchangeable to other
securities covered hereby, in one or more transactions.
This
prospectus provides you with a general description of the securities we may
offer. Each time we sell any of these securities, we will provide one or more
prospectus supplements containing specific information about the terms of that
offering. Any prospectus supplements also may add, update or change information
contained in this prospectus. If information in any prospectus supplement is
inconsistent with the information in this prospectus, then the information in
that prospectus supplement will apply and will supersede the information in this
prospectus. You should carefully read both this prospectus and any prospectus
supplement, together with additional information described under the heading
“Where You Can Find More Information,” before you invest in the
securities.
We may
sell securities directly to you, through agents we select, or through
underwriters or dealers we select. If we use agents, underwriters or
dealers to sell the securities, we will name them and describe their
compensation in a prospectus supplement. The net proceeds we expect
to receive from these sales will be described in the prospectus
supplement.
Our
common stock is traded on the NASDAQ Global Select Market® under the symbol
“AIRM.” On December 2, 2009, the last reported sales price of our common stock
on the NASDAQ Global Select Market® was $35.11 per share. The applicable
prospectus supplement will contain information, where applicable, as to any
other listing on the NASDAQ Global Select Market® or any securities exchange of
the securities covered by the prospectus supplement.
The
securities offered in this prospectus involve a high degree of risk. You should
carefully consider the matters set forth in “Risk Factors” on page
2 of this prospectus or incorporated by reference herein in determining whether
to purchase our securities.
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 ____________, 2009.
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This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission (the “SEC”) using a “shelf” registration process on Form
S-3. See “Where You Can Find More Information” and “Information Incorporated By
Reference.” Under the shelf registration, we may sell any combination of the
securities described in this prospectus in one or more offerings up to a total
dollar amount of $200,000,000. This prospectus provides you with a
general description of the securities that we may offer. Each time that
securities are sold pursuant to the registration statement, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement also may add, update or change
information contained or incorporated by reference in this prospectus. You
should read both this prospectus and any prospectus supplement together with
additional information described in “Where You Can Find More Information” and
“Information Incorporated by Reference” before you invest. This prospectus may
be used to sell securities only if it is accompanied by a prospectus
supplement.
You
should rely only on the information contained in this prospectus and in any
relevant prospectus supplement, including any information incorporated by
reference. We have not authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent information,
you should not rely on it. You should not assume that the information in this
prospectus, any accompanying prospectus supplement or any document incorporated
by reference is accurate as of any date other than the date on its front cover.
Our business, financial condition, results of operations and prospects may have
changed since the date indicated on the front cover of such documents. Neither
this prospectus nor any prospectus supplement constitutes an offer to sell or
the solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor does this prospectus or a prospectus
supplement constitute an offer to sell or the solicitation of an offer to buy
securities in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction.
Except as
otherwise indicated or where the context otherwise requires, as used in this
prospectus, the terms “Air Methods,” “we,” “our,” “ours” and “us” may, depending
on the context, refer to Air Methods Corporation or to one or more of Air
Methods Corporation’s consolidated subsidiaries or to Air Methods Corporation
and its consolidated subsidiaries, taken as a whole.
Air
Methods Corporation was established in Colorado in 1982 and now serves as the
largest provider of air medical emergency transport services and systems
throughout the United States of America. We provide air medical
emergency transport services under two separate operating models: the
Community-Based Services model (“CBS”) and the Hospital-Based Services model
(“HBS”). In October 2002, we acquired 100% of the membership interest
of Rocky Mountain Holdings, L.L.C. (“RMH”), a Delaware limited liability company
that conducted both CBS and HBS operations. On October 1, 2007, we
acquired 100% of the outstanding common stock of FSS Airholdings, Inc., the
parent company of CJ Systems Aviation Group, Inc. (“CJ”). RMH, Mercy
Air Service, Inc. (“Mercy Air”), CJ, and LifeNet, Inc. (“LifeNet”) operate as
wholly-owned subsidiaries of Air Methods. As of September 30, 2009,
our CBS division provided air medical transportation services in 21 states,
while our HBS division provided air medical transportation services to hospitals
located in 26 states under operating agreements with original terms ranging from
one to ten years. Under both CBS and HBS operations, we transport
persons requiring intensive medical care from either the scene of an accident or
general care hospitals to highly skilled trauma centers or tertiary care
centers. Under the CBS delivery model, our employees provide medical
care to patients en route, while under the HBS delivery model, medical care en
route is provided by employees or contractors of our customer
hospitals. Our Products Division designs, manufactures, and installs
aircraft medical interiors and other aerospace or
medical transport products.
We
maintain our principal executive offices at 7301 South Peoria, Englewood,
Colorado 80112, and our telephone number is 303-792-7400. Our website
can be found at www.airmethods.com. The information on our website is
not a part of this prospectus.
Before
you decide whether to purchase any of our securities, in addition to the other
information in this prospectus and the accompanying prospectus supplement, you
should carefully consider the risk factors set forth under the heading “Risk
Factors” in our most recent Annual Report on Form 10-K, which is incorporated by
reference into this prospectus, as the same may be updated from time to time by
our future filings under the Securities Exchange Act of 1934 (the “Exchange Act”).
For more information, see the section entitled “Incorporation by
Reference.”
This
prospectus, including information incorporated herein by reference, contains
forward-looking statements as defined in the Private Securities Litigation
Reform Act of 1995. A prospectus supplement, and information incorporated by
reference therein, may also contain such forward-looking statements. The use of
any statements containing the words “anticipate,” “intend,” “believe,”
“estimate,” “project,” “expect,” “plan,” “should” or similar expressions are
intended to identify such statements. Forward-looking statements relate to,
among other things:
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statements
concerning our possible or assumed future financial
results;
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flight
volume and collection rates for CBS
operations;
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size,
structure and growth of our air medical services and products
markets;
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continuation
and/or renewal of HBS contracts;
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acquisition
of new and profitable Products Division contracts;
and
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Although
we believe that the expectations reflected in such forward-looking statements
are reasonable, those expectations may prove to be incorrect. Important factors
that could cause actual results to differ materially from our expectations, or
cautionary statements, are discussed under the heading “Risk Factors” and in
documents incorporated in this prospectus by reference and may be so included in
any prospectus supplement, including, without limitation, in conjunction with
the forward-looking statements. All forward-looking statements speak only as of
the date made. All written and oral forward-looking statements attributable to
us, or persons acting on our behalf, are expressly qualified in their entirety
by the cautionary statements.
Factors
that could cause actual results to differ materially from our expectations
include, among others, such things as:
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acquisitions
and other business opportunities (or the lack thereof) that may be
presented to and pursued by us;
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risks
related to our level of
indebtedness;
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loss
of senior management or technical
personnel;
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a
lack of available capital and
financing;
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the
existence of unanticipated liabilities or problems relating to acquired
businesses or properties;
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difficulties
involved in the integration of operations we have acquired or may acquire
in the future;
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general
economic, market or business
conditions;
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risk
factors discussed in this prospectus, any prospectus supplement or any
document incorporated by reference in this prospectus or any prospectus
supplement; and
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other
factors, many of which are beyond our
control.
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Except as
required by law, we undertake no obligation to update any forward-looking
statement to reflect events or circumstances after the date on which it is made
or to reflect the occurrence of anticipated or unanticipated events or
circumstances.
Unless a
prospectus supplement indicates otherwise, the net proceeds we receive from the
sale of the securities offered by this prospectus and the relevant prospectus
supplement will be used for (i) acquisition of additional air medical emergency
transport companies or equipment, (ii) payment or reduction of outstanding
indebtedness, (iii) various merger and acquisition activities, or (iv) other
general corporate purposes. If any material part of the proceeds is to be used
to repay outstanding indebtedness, the relevant prospectus supplement will
provide information regarding the amount being prepaid, the date of and reason
for incurrence of such indebtedness, the maturity of such indebtedness and the
interest rate on such indebtedness.
We have
computed the ratio of fixed charges by dividing earnings by fixed
charges. For this
purpose, “earnings” consist of (a) income/(loss) from continuing operations
before income tax /including the cumulative effect of changes in accounting
principles), (b) fixed charges, and (c) adjustments for minority
interests. “Fixed charges” consist of interest and financing
expense, amortization of deferred financing costs, and that portion of rental
expense on operating leases deemed to be the equivalent of
interest. Our ratio of earnings to fixed charges is as follows for
the periods indicated:
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Quarter
Ended
September 30,
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2.51 |
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3.11 |
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3.68 |
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2.29 |
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3.36 |
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We may
sell the offered securities (a) through agents, (b) through underwriters or
dealers, (c) directly to one or more purchasers, or (d) through a combination of
any of these methods of sale. We will identify the specific plan of
distribution, including any underwriters, dealers, agents or direct purchasers
and their compensation, in a prospectus supplement.
The
following description, together with the additional information we include in
any applicable prospectus supplements, summarizes the material terms and
provisions of the debt securities that we may offer under this prospectus. While
the terms we have summarized below will apply generally to any future debt
securities we may offer, we will describe the particular terms of any debt
securities that we may offer in more detail in the applicable prospectus
supplement. Because the terms of a specific series of debt securities may vary
from the general information that we have provided below, you should rely on
information in the applicable prospectus supplement that varies from any
information below.
We may
issue senior notes under a senior indenture to be entered into among, us, a
trustee to be named in the senior indenture and, if guaranteed, the subsidiary
guarantors named therein. We may issue subordinated notes under a subordinated
indenture to be entered into among us, a trustee to be named in the subordinated
indenture and, if guaranteed, the subsidiary guarantors named therein. We have
filed forms of the indentures as exhibits to the registration statement which
includes this prospectus. We use the term “indentures” to refer to both the
senior indenture and the subordinated indenture. The indentures will be
qualified under the Trust Indenture Act of 1939 (the “Trust Indenture Act”). We
use the term “trustee” to refer to either the senior trustee or the subordinated
trustee, as applicable. We urge you to read the indenture applicable to your
investment because the indenture, and not this section, defines your rights as a
holder of debt securities.
The debt
securities may be guaranteed by certain of our subsidiaries.
The
following summaries of material provisions of senior notes, subordinated notes
and the indentures are subject to, and qualified in their entirety by reference
to, the provisions of the indenture applicable to a particular series of debt
securities. Except as we may otherwise indicate, the terms of the senior
indenture and the subordinated indenture are identical in all material
respects.
General
The
senior debt securities will have the same ranking as all of our other unsecured
and unsubordinated debt. The subordinated debt securities will be unsecured and
will be subordinated and junior to all senior indebtedness.
The debt
securities may be issued in one or more separate series of senior debt
securities and/or subordinated debt securities. The prospectus supplement
relating to the particular series of debt securities being offered will specify
the particular amounts, prices and terms of those debt securities. These terms
may include:
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the
title of the debt securities;
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•
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any
limit upon the aggregate principal amount of the debt
securities;
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•
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the
date or dates, or the method of determining the dates, on which the debt
securities will mature;
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•
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the
interest rate or rates of the debt securities, or the method of
determining those rates, the interest payment dates and, for registered
debt securities, the regular record
dates;
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•
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if
a debt security is issued with original issue discount, the yield to
maturity;
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the
places where payments may be made on the debt
securities;
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any
mandatory or optional redemption provisions applicable to the debt
securities;
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any
sinking fund or analogous provisions applicable to the debt
securities;
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•
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whether
and on what terms we will pay additional amounts to holders of the debt
securities that are not U.S. persons in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether and on what
terms we will have the option to redeem the debt securities rather than
pay the additional amounts;
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•
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whether
the notes will be guaranteed by certain, or all of, our
subsidiaries;
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whether
the notes and/or any guarantees will be senior or
subordinated;
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•
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any
terms for the attachment to the debt securities of warrants, options or
other rights to purchase or sell our
securities;
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the
portion of the principal amount of the debt security payable upon the
acceleration of maturity if other than the entire principal amount of the
debt securities;
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any
deletions of, or changes or additions to, the events of default or
covenants applicable to the debt
securities;
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•
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if
other than U.S. dollars, the currency or currencies in which payments of
principal, premium and/or interest on the debt securities will be payable
and whether the holder may elect payment to be made in a different
currency;
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•
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the
method of determining the amount of any payments on the debt securities
which are linked to an index;
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•
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whether
the debt securities will be issued in fully registered form without
coupons or in bearer form, with or without
coupons;
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or
any combination of these, and whether they will be issued in the form of
one or more global securities in temporary or definitive
form;
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whether
the debt securities will be convertible or exchangeable into or for common
stock, preferred stock or other debt securities and the conversion price
or exchange ratio, the conversion or exchange period and any other
conversion or exchange provisions;
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any
terms relating to the delivery of the debt securities if they are to be
issued upon the exercise of warrants;
and
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any
other specific terms of the debt
securities.
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Unless
otherwise specified in the applicable prospectus supplement, (1) the debt
securities will be registered debt securities and (2) debt securities
denominated in U.S. dollars will be issued, in the case of registered debt
securities, in denominations of $1,000 or an integral multiple of $1,000 and, in
the case of bearer debt securities, in denominations of $5,000. Debt securities
may bear legends required by United States federal tax law and
regulations.
If any of
the debt securities are sold for any foreign currency or currency unit or if any
payments on the debt securities are payable in any foreign currency or currency
unit, the prospectus supplement will contain any restrictions, elections, tax
consequences, specific terms and other information with respect to the debt
securities and the foreign currency or currency unit.
Some of
the debt securities may be issued as original issue discount debt securities.
Original issue discount securities bear no interest during all or a part of the
time that these debt securities are outstanding or bear interest at below-market
rates and will be sold at a discount below their stated principal amount at
maturity. The prospectus supplement will also contain special tax, accounting or
other information relating to original issue discount securities or relating to
other kinds of debt securities that may be offered, including debt securities
linked to an index or payable in currencies other than U.S.
dollars.
Exchange,
Registration and Transfer
Debt
securities may be transferred or exchanged at the corporate trust office of the
security registrar or at any other office or agency maintained by our company
for these purposes, without the payment of any service charge, except for any
tax or governmental charges. The senior trustee initially will be the designated
security registrar in the United States for the senior debt securities. The
subordinated trustee initially will be the designated security registrar in the
United States for the subordinated debt securities.
If debt
securities are issuable as both registered debt securities and bearer debt
securities, the bearer debt securities will be exchangeable for registered debt
securities. Except as provided below, bearer debt securities will have
outstanding coupons. If a bearer debt security with related coupons is
surrendered in exchange for a registered debt security between a record date and
the date set for the payment of interest, the bearer debt security will be
surrendered without the coupon relating to that interest payment and that
payment will be made only to the holder of the coupon when due.
In the
event of any redemption in part of any class or series of debt securities, we
will not be required to:
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issue,
register the transfer of, or exchange, debt securities of any series
between the opening of business 15 days before any selection of debt
securities of that series to be redeemed and the close of business
on:
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if
debt securities of the series are issuable only as registered debt
securities, the day of mailing of the relevant notice of redemption,
and
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if
debt securities of the series are issuable as bearer debt securities, the
day of the first publication of the relevant notice of redemption or, if
debt securities of the series are also issuable as registered debt
securities and there is no publication, the day of mailing of the relevant
notice of redemption;
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register
the transfer of, or exchange, any registered debt security selected for
redemption, in whole or in part, except the unredeemed portion of any
registered debt security being redeemed in part;
or
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exchange
any bearer debt security selected for redemption, except to exchange it
for a registered debt security which is simultaneously surrendered for
redemption.
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Payment
and Paying Agent
We will
pay principal, interest and any premium on fully registered securities in the
designated currency or currency unit at the office of a designated paying agent.
Payment of interest on fully registered securities may be made at our option by
check mailed to the persons in whose names the debt securities are registered on
days specified in the indentures or any prospectus supplement.
We will
pay principal, interest and any premium on bearer securities in the designated
currency or currency unit at the office of a designated paying agent or agents
outside of the United States. Payments will be made at the offices of the paying
agent in the United States only if the designated currency is U.S. dollars and
payment outside of the United States is illegal or effectively precluded. If any
amount payable on any debt security or coupon remains unclaimed at the end of
two years after that amount became due and payable, the paying agent will
release any unclaimed amounts to our company, and the holder of the debt
security or coupon will look only to our company for payment.
Global
Securities
A global
security represents one or any other number of individual debt securities.
Generally all debt securities represented by the same global securities will
have the same terms. Each debt security issued in book-entry form will be
represented by a global security that we deposit with and register in the name
of a financial institution or its nominee that we select. The financial
institution that we select for this purpose is called the depositary. Unless we
specify otherwise in the applicable prospectus supplement, The Depository Trust
Company, New York, New York, known as DTC, will be the depositary for all debt
securities that are issued in book-entry form.
A global
security may not be transferred to or registered in the name of anyone other
than the depositary or its nominee, unless special termination situations arise.
As a result of these arrangements, the depositary, or its nominee, will be the
sole registered holder of all debt securities represented by a global security,
and investors will be permitted to own only beneficial interests in a global
security. Beneficial interests must be held by means of an account with a
broker, bank or other financial institution that in turn has an account either
with the depositary or with another institution that has an account with the
depositary. Thus, an investor whose security is represented by a global security
will not be registered holder of the debt security, but an indirect holder of a
beneficial interest in the global security.
Temporary
Global Securities
All or
any portion of the debt securities of a series that are issuable as bearer debt
securities initially may be represented by one or more temporary global debt
securities, without interest coupons, to be deposited with the depositary for
credit to the accounts of the beneficial owners of the debt securities or to
other accounts as they may direct. On and after an exchange date provided in the
applicable prospectus supplement, each temporary global debt security will be
exchangeable for definitive debt securities in bearer form, registered form,
definitive global bearer form or any combination of these forms, as specified in
the prospectus supplement. No bearer debt security delivered in exchange for a
portion of a temporary global debt security will be mailed or delivered to any
location in the United States.
Interest
on a temporary global debt security will be paid to the depositary with respect
to the portion held for its account only after they deliver to the trustee a
certificate which states that the portion:
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is
not beneficially owned by a United States
person;
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has
not been acquired by or on behalf of a United States person or for offer
to resell or for resale to a United States person or any person inside the
United States; or
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if
a beneficial interest has been acquired by a United States person, that
the person is a financial institution, as defined in the Internal Revenue
Code, purchasing for its own account or has acquired the debt security
through a financial institution and that the debt securities are held by a
financial institution that has agreed in writing to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code and the regulations to the Internal Revenue Code and that it did not
purchase for resale inside the United
States.
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The
certificate must be based on statements provided by the beneficial owners of
interests in the temporary global debt security. The depositary will credit the
interest received by it to the accounts of the beneficial owners of the debt
security or to other accounts as they may direct.
“United
States person” means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States or an estate or trust with income subject to United States federal
income taxation regardless of its source.
Definitive
Global Securities
Bearer Securities. The
applicable prospectus supplement will describe the exchange provisions, if any,
of debt securities issuable in definitive global bearer form. We will not
deliver any bearer debt securities delivered in exchange for a portion of a
definitive global debt security to any location in the United
States.
U.S. Book-Entry Securities.
Debt securities of a series represented by a definitive global registered debt
security and deposited with or on behalf of a depositary in the United States
will be represented by a definitive global debt security registered in the name
of the depositary or its nominee. Upon the issuance of a global debt security
and the deposit of the global debt security with the depositary, the depositary
will credit, on its book-entry registration and transfer system, the respective
principal amounts represented by that global debt security to the accounts of
participating institutions that have accounts with the depositary or its
nominee. The accounts to be credited shall be designated by the underwriters or
agents for the sale of U.S. book-entry debt securities or by us, if these debt
securities are offered and sold directly by us.
Ownership
of U.S. book-entry debt securities will be limited to participants or persons
that may hold interests through participants. In addition, ownership of U.S.
book-entry debt securities will be evidenced only by, and the transfer of that
ownership will be effected only through, records maintained by the depositary or
its nominee for the definitive global debt security or by participants or
persons that hold through participants.
So long
as the depositary or its nominee is the registered owner of a global debt
security, that depositary or nominee, as the case may be, will be considered the
sole owner or holder of the U.S. book-entry debt securities represented by that
global debt security for all purposes under the indenture. Payment of principal
of, and premium and interest, if any, on, U.S. book-entry debt securities will
be made to the depositary or its nominee as the registered owner or the holder
of the global debt security representing the U.S. book-entry debt securities.
Owners of U.S. book-entry debt securities:
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will
not be entitled to have the debt securities registered in their
names;
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will
not be entitled to receive physical delivery of the debt securities in
definitive form; and
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will
not be considered the owners or holders of the debt securities under the
indenture.
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The laws
of some jurisdictions require that purchasers of securities take physical
delivery of securities in definitive form. These laws impair the ability to
purchase or transfer U.S. book-entry debt securities.
We expect
that the depositary for U.S. book-entry debt securities of a series, upon
receipt of any payment of principal of, or premium or interest, if any, on, the
related definitive global debt security, will immediately credit participants’
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of the global debt security as shown on the
records of the depositary. We also expect that payments by participants to
owners of beneficial interests in a global debt security held through those
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers in bearer
form or registered in “street name,” and will be the responsibility of those
participants.
Consolidation,
Merger, Sale or Conveyance
We may,
without the consent of the holders of the debt securities, merge into or
consolidate with any other person, or convey or transfer all or substantially
all of our company’s properties and assets to another person provided
that:
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the
successor assumes on the same terms and conditions all the obligations
under the debt securities and the indentures;
and
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immediately
after giving effect to the transaction, there is no default under the
applicable indenture.
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The
remaining or acquiring person will be substituted for our company in the
indentures with the same effect as if it had been an original party to the
indenture. A prospectus supplement will describe any other limitations on the
ability of our company to merge into, consolidate with, or convey or transfer
all or substantially all or our properties and assets to, another
person.
Satisfaction
and Discharge; Defeasance
We may be
discharged from our obligations on the debt securities of any class or series
that have matured or will mature or be redeemed within one year if we deposit
with the trustee enough cash and/or U.S. government obligations or foreign
government securities, as the case may be, to pay all the principal, interest
and any premium due to the stated maturity or redemption date of the debt
securities and comply with the other conditions set forth in the applicable
indenture. The principal conditions that we must satisfy to discharge our
obligations on any debt securities are (1) pay all other sums payable with
respect to the applicable series of debt securities and (2) deliver to the
trustee an officers’ certificate and an opinion of counsel which state that the
required conditions have been satisfied.
Each
indenture contains a provision that permits our company to elect to be
discharged from all of our obligations with respect to any class or series of
debt securities then outstanding. However, even if we effect a legal defeasance,
some of our obligations will continue, including obligations to:
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maintain
and apply money in the defeasance
trust,
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register
the transfer or exchange of the debt
securities,
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replace
mutilated, destroyed, lost or stolen debt securities,
and
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maintain
a registrar and paying agent in respect of the debt
securities.
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Each
indenture also permits our company to elect to be released from our obligations
under specified covenants and from the consequences of an event of default
resulting from a breach of those covenants. To make either of the above
elections, we must deposit in trust with the trustee cash and/or U.S. government
obligations, if the debt securities are denominated in U.S. dollars, and/or
foreign government securities if the debt securities are denominated in a
foreign currency, which through the payment of principal and interest under
their terms will provide sufficient amounts, without reinvestment, to repay in
full those debt securities. As a condition to legal defeasance or covenant
defeasance, we must deliver to the trustee an opinion of counsel that the
holders of the debt securities will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of the deposit and defeasance and will
be subject to U.S. federal income tax in the same amount and in the same manner
and times as would have been the case if the deposit and defeasance had not
occurred. In the case of a legal defeasance only, the opinion of counsel must be
based on a ruling of the U.S. Internal Revenue Service or other change in
applicable U.S. federal income tax law.
The
indentures specify the types of U.S. government obligations and foreign
government securities that we may deposit.
Events
of Default, Notice and Waiver
Each
indenture defines an event of default with respect to any class or series of
debt securities as one or more of the following events:
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failure
to pay interest on any debt security of the class or series for 30 days
when due;
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failure
to pay the principal or any premium on any debt securities of the class or
series when due;
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failure
to make any sinking fund payment for 30 days when
due;
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failure
to perform any other covenant in the debt securities of the series or in
the applicable indenture with respect to debt securities of the series for
90 days after being given notice;
and
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occurrence
of an event of bankruptcy, insolvency or reorganization set forth in the
indenture.
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An event
of default for a particular class or series of debt securities does not
necessarily constitute an event of default for any other class or series of debt
securities issued under an indenture.
In the
case of an event of default arising from events of bankruptcy or insolvency set
forth in the indenture, all outstanding debt securities will become due and
payable immediately without further action or notice. If any other event of
default as to a series of debt securities occurs and is continuing, the trustee
or the holders of at least 25% in principal amount of the then outstanding debt
securities of that series may declare all the debt securities to be due and
payable immediately.
The
holders of a majority in aggregate principal amount of the debt securities then
outstanding by notice to the trustee may on behalf of the holders of all of the
debt securities of that series waive any existing default or event of default
and its consequences under the applicable indenture except a continuing default
or event of default in the payment of interest on, or the principal of, the debt
securities of that series.
Each
indenture requires the trustee to, within 90 days after the occurrence of a
default known to it with respect to any outstanding series of debt securities,
give the holders of that class or series notice of the default if uncured or not
waived. However, the trustee may withhold this notice if it determines in good
faith that the withholding of this notice is in the interest of those holders,
except that the trustee may not withhold this notice in the case of a payment
default. The term “default” for the purpose of this provision means any event
that is, or after notice or lapse of time or both would become, an event of
default with respect to debt securities of that series.
Other
than the duty to act with the required standard of care during an event of
default, a trustee is not obligated to exercise any of its rights or powers
under the applicable indenture at the request or direction of any of the holders
of debt securities, unless the holders have offered to the trustee reasonable
security and indemnity. Each indenture provides that the holders of a majority
in principal amount of outstanding debt securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or other power conferred on the trustee if
the direction would not conflict with any rule of law or with the indenture.
However, the trustee may take any other action that it deems proper which is not
inconsistent with any direction and may decline to follow any direction if it in
good faith determines that the directed action would involve it in personal
liability.
Each
indenture includes a covenant that we will file annually with the trustee a
certificate of no default, or specifying any default that exists.
Modification
of the Indentures
We and
the applicable trustee may modify an indenture without the consent of the
holders for limited purposes, including adding to our covenants or events of
default, establishing forms or terms of debt securities, curing ambiguities and
other purposes which do not adversely affect the holders in any material
respect.
We and
the applicable trustee may make modifications and amendments to an indenture
with the consent of the holders of a majority in principal amount of the
outstanding debt securities of all affected series. However, without the consent
of each affected holder, no modification may:
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change
the stated maturity of any debt
security;
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reduce
the principal, premium, if any, or rate of interest on any debt
security;
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change
any place of payment or the currency in which any debt security is
payable;
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impair
the right to enforce any payment after the stated maturity or redemption
date;
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adversely
affect the terms of any conversion
right;
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reduce
the percentage of holders of outstanding debt securities of any series
required to consent to any modification, amendment or waiver under the
indenture;
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change
any of our obligations, with respect to outstanding debt securities of a
series, to maintain an office or agency in the places and for the purposes
specified in the indenture for the series;
or
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change
the provisions in the indenture that relate to its modification or
amendment other than to increase the percentage of outstanding debt
securities of any series required to consent to any modification or waiver
under the indenture.
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Meetings
The
indentures will contain provisions for convening meetings of the holders of debt
securities of a series. A meeting may be called at any time by the trustee and
also, upon request, by our company or the holders of at least 25% in principal
amount of the outstanding debt securities of a series, in any case upon notice
given in accordance with “Notices” below. Persons holding a majority in
principal amount of the outstanding debt securities of a series will constitute
a quorum at a meeting. A meeting called by our company or the trustee that does
not have a quorum may be adjourned for not less than 10 days. If there is not a
quorum at the adjourned meeting, the meeting may be further adjourned for not
less than 10 days. Any resolution presented at a meeting at which a quorum is
present may be adopted by the affirmative vote of the holders of a majority in
principal amount of the outstanding debt securities of that series, except for
any consent which must be given by the holders of each debt security affected by
the modifications or amendments of an indenture described above under
“Modification of the Indentures.” However, a resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver, or other
action which may be made, given, or taken by the holders of a specified
percentage, which is equal to or less than a majority, in principal amount of
outstanding debt securities of a series may be adopted at a meeting at which a
quorum is present by the affirmative vote of the holders of the specified
percentage in principal amount of the outstanding debt securities of that
series. Any resolution passed or decision taken at any meeting of holders of
debt securities of any series duly held in accordance with an indenture will be
binding on all holders of debt securities of that series and the related
coupons. The indentures will provide that specified consents, waivers and other
actions may be given by the holders of a specified percentage of outstanding
debt securities of all series affected by the modification or amendment, acting
as one class. For purposes of these consents, waivers and actions, only the
principal amount of outstanding debt securities of any series represented at a
meeting at which a quorum is present and voting in favor of the action will be
counted for purposes of calculating the aggregate principal amount of
outstanding debt securities of all series affected by the modification or
amendment favoring the action.
Notices
In most
instances, notices to holders of bearer debt securities will be given by
publication at least once in a daily newspaper in New York, New York and in
London, England and in other cities as may be specified in the bearer debt
securities and will be mailed to those persons whose names and addresses were
previously filed with the applicable trustee, within the time prescribed for the
giving of the notice. Notice to holders of registered debt securities will be
given by mail to the addresses of those holders as they appear in the security
register.
Title
Title to
any bearer debt securities and any related coupons will pass by delivery. We,
the trustee, and any agent of ours or the trustee may treat the holder of any
bearer debt security or related coupon and, prior to due presentment for
registration of transfer, the registered owner of any registered debt security
as the absolute owner of that debt security for the purpose of making payment
and for all other purposes, regardless of whether or not that debt security or
coupon shall be overdue and notwithstanding any notice to the
contrary.
Replacement
of Securities Coupons
Debt
securities or coupons that have been mutilated will be replaced by our company
at the expense of the holder upon surrender of the mutilated debt security or
coupon to the security registrar. Debt securities or coupons that become
destroyed, stolen, or lost will be replaced by our company at the expense of the
holder upon delivery to the security registrar of evidence of its destruction,
loss, or theft satisfactory to our company and the security registrar. In the
case of a destroyed, lost, or stolen debt security or coupon, the holder of the
debt security or coupon may be required to provide reasonable security or
indemnity to the trustee and our company before a replacement debt security will
be issued.
Governing
Law
The
indentures, the debt securities and the coupons will be governed by, and
construed under, the laws of the State of New York.
Concerning
the Trustees
We may
from time to time maintain lines of credit, and have other customary banking
relationships, with any of the trustees.
Senior
Debt Securities
The
senior debt securities will rank equally with all of our company’s other
unsecured and non-subordinated debt.
Certain
Covenants in the Senior Indenture
The
prospectus supplement relating to a series of senior debt securities will
describe any material covenants in respect of that series of senior debt
securities.
Subordinated
Debt Securities
The
subordinated debt securities will be unsecured. The subordinated debt securities
will be subordinate in right of payment to all senior indebtedness. In addition,
claims of creditors generally will have priority with respect to the assets and
earnings of our subsidiaries, including holders of the subordinated debt
securities, even though those obligations may not constitute senior
indebtedness. The subordinated debt securities, therefore, will be effectively
subordinated to creditors, including trade creditors with regard to the assets
of our subsidiaries. Creditors of our subsidiaries include trade creditors,
secured creditors and creditors holding guarantees issued by our
subsidiaries.
Unless
otherwise specified in a prospectus supplement, senior indebtedness shall mean
the principal of, premium, if any, and interest on, all indebtedness for money
borrowed by our company and any deferrals, renewals, or extensions of any senior
indebtedness. Indebtedness for money borrowed by our company includes all
indebtedness of another person for money borrowed that we guarantee, other than
the subordinated debt securities, whether outstanding on the date of execution
of the subordinated indenture or created, assumed or incurred after the date of
the subordinated indenture. However, senior indebtedness will not include any
indebtedness that expressly states to have the same rank as the subordinated
debt securities or to rank junior to the subordinated debt securities. Senior
indebtedness will also not include:
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any
of our obligations to our subsidiaries;
and
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any
liability for federal, state, local or other taxes owed or owing by our
company.
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The
senior debt securities constitute senior indebtedness under the subordinated
indenture. A prospectus supplement will describe the relative ranking among
different series of subordinated debt securities.
Unless
otherwise specified in a prospectus supplement, we may not make any payment on
the subordinated debt securities and may not purchase, redeem, or retire any
subordinated debt securities if any senior indebtedness is not paid when due or
the maturity of any senior indebtedness is accelerated as a result of a default,
unless the default has been cured or waived and the acceleration has been
rescinded or the senior indebtedness has been paid in full. We may, however, pay
the subordinated debt securities without regard to these limitations if the
subordinated trustee and our company receive written notice approving the
payment from the representatives of the holders of senior indebtedness with
respect to which either of the events set forth above has occurred and is
continuing. Unless otherwise specified in a prospectus supplement, during the
continuance of any default with respect to any designated senior indebtedness
under which its maturity may be accelerated immediately without further notice
or the expiration of any applicable grace periods, we may not pay the
subordinated debt securities for 90 days after the receipt by the subordinated
trustee of written notice of a default from the representatives of the holders
of designated senior indebtedness. If the holders of designated senior
indebtedness or the representatives of those holders have not accelerated the
maturity of the designated senior indebtedness at the end of the 90 day period,
we may resume payments on the subordinated debt securities. Only one notice may
be given in any consecutive 360-day period, irrespective of the number of
defaults with respect to designated senior indebtedness during that
period.
In the
event that we pay or distribute our company’s assets to creditors upon a total
or partial liquidation, dissolution or reorganization of our company or our
company’s property, the holders of senior indebtedness will be entitled to
receive payment in full of the senior indebtedness before the holders of
subordinated debt securities are entitled to receive any payment. Until the
senior indebtedness is paid in full, any payment or distribution to which
holders of subordinated debt securities would be entitled but for the
subordination provisions of the subordinated indenture will be made to holders
of the senior indebtedness as their interests may appear. However, holders of
subordinated debt securities will be permitted to receive distributions of
shares and debt securities subordinated to the senior indebtedness. If a
distribution is made to holders of subordinated debt securities that, due to the
subordination provisions, should not have been made to them, the holders of
subordinated debt securities are required to hold it in trust for the holders of
senior indebtedness, and pay it over to them as their interests may
appear.
If
payment of the subordinated debt securities is accelerated because of an event
of default, either we or the subordinated trustee will promptly notify the
holders of senior indebtedness or the representatives of the holders of the
acceleration. We may not pay the subordinated debt securities until five
business days after the holders or the representatives of the senior
indebtedness receive notice of the acceleration. Afterwards, we may pay the
subordinated debt securities only if the subordination provisions of the
subordinated indenture otherwise permit payment at that time.
As a
result of the subordination provisions contained in the subordinated indenture,
in the event of insolvency, our creditors who are holders of senior indebtedness
may recover more, ratably, than the holders of subordinated debt securities. In
addition, our creditors who are not holders of senior indebtedness may recover
less, ratably, than holders of senior indebtedness and may recover more,
ratably, than the holders of subordinated indebtedness.
The
prospectus supplement relating to a series of subordinated debt securities will
describe any material covenants in respect of any series of subordinated debt
securities.
Conversion
or Exchange
We may
issue debt securities that we may convert or exchange into common stock or other
securities, property or assets. If so, we will describe the specific terms on
which the debt securities may be converted or exchanged in the applicable
prospectus supplement. The conversion or exchange may be mandatory, at your
option, or at our option. The applicable prospectus supplement will describe the
manner in which the shares of common stock or other securities, property or
assets you would receive would be issued or delivered.
Our
subsidiaries may issue full and unconditional guarantees of debt securities that
we offer in any prospectus supplement. Each guarantee will be issued under a
supplement to an indenture. The prospectus supplement relating to a particular
issue of guarantees will describe the terms of those guarantees, including the
following:
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the
series of debt securities to which the guarantees
apply;
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whether
the guarantees are secured or
unsecured;
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whether
the guarantees are senior or subordinate to other guarantees or
debt;
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the
terms under which the guarantees may be amended, modified, waived,
released or otherwise terminated, if different from the provisions
applicable to the guaranteed debt securities;
and
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the
additional terms of the guarantees.
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Our
authorized capital stock consists of:
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16
million shares of common stock, par value $.06 per share, of which
12,388,554 shares were outstanding as of October 23, 2009;
and
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5
million shares of preferred stock, par value $1.00 per share, of which no
shares were issued and outstanding as of October 23,
2009.
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The
rights of our stockholders are governed by Delaware law, our certificate of
incorporation and our bylaws. The following is a summary of the material terms
of our capital stock and is qualified in its entirety by reference to our
certificate of incorporation and our bylaws, each of which is incorporated by
reference in this prospectus.
Common
Stock
Dividend and Liquidation
Rights. Holders of our common stock may receive dividends
when, as and if declared by our board of directors out of funds legally
available for the payment of dividends. As a Delaware corporation, we may pay
dividends out of surplus or, if there is no surplus, out of net profits for the
fiscal year in which a dividend is declared and/or the preceding fiscal year.
Section 170 of the Delaware General Corporation Law (the “DGCL”) also provides
that dividends may not be paid out of net profits if, after the payment of the
dividend, our capital is less than the capital represented by the outstanding
stock of all classes having a preference upon the distribution of
assets.
In the
event of our liquidation, holders of common stock will be entitled to share
ratably in the net assets legally available for distribution to stockholders
after the payment of all of our debts and other liabilities.
The right
of holders of our common stock to receive dividends and distributions upon
liquidation will be subject to the satisfaction of any applicable preference
granted to the holders of any preferred stock that may then be
outstanding.
Voting and Other
Rights. Holders of common stock are entitled to one vote per
share on all matters to be voted upon by the stockholders. The holders of common
stock do not have cumulative voting rights in the election of
directors. The Company has the right to amend or repeal provisions of
our certificate of incorporation.
No Preemptive, Conversion or
Redemption Rights. The common stock has no preemptive,
conversion or exchange rights and is not subject to further calls or assessment
by us. There are no redemption, retraction, purchase for cancellation or sinking
fund provisions applicable to the common stock.
Preferred
Stock
Our
certificate of incorporation authorizes our board of directors to establish one
or more series of preferred stock. With respect to any series of preferred
stock, our board of directors is authorized to determine the terms and rights of
that series, including:
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the
designation of the series and the number of shares to constitute the
series;
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the
dividend rate of the series, the conditions and dates upon which such
dividends will be payable, the relation which such dividends will bear to
the dividends payable on any other class or classes of stock, and whether
such dividends will be cumulative or
noncumulative;
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whether
the shares of the series will be subject to redemption by us and, if made
subject to such redemption, the times, prices and other terms and
conditions of such redemption;
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the
terms and amount of any sinking fund provided for the purchase or
redemption of the shares of the
series;
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whether
or not the shares of the series will be convertible into or exchangeable
for shares of any other class or classes of stock, and, if provision is
made for conversion or exchange, the times, prices, rates, adjustments and
other terms and conditions of such conversion or
exchange;
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the
restrictions, if any, on the issue or reissue of any additional shares of
preferred stock of that series; and
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the
rights of the holders of the shares of the series upon the dissolution,
liquidation, or winding up of the
corporation.
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Except as
otherwise required by law or by any stock exchange, the authorized shares of
preferred stock and common stock will be available for issuance without further
action by our shareholders.
We could
issue a series of preferred stock that could impede the completion of a merger,
tender offer or other takeover attempt. We will make any determination to issue
preferred stock based on our judgment as to the best interests of our company
and our stockholders. In so acting, we could issue preferred stock having terms
that could discourage an acquisition attempt or other transaction that some, or
a majority, of our stockholders might believe to be in their best interests or
in which stockholders might receive a premium for their common stock over the
then-current market price of the common stock.
Authorized
but Unissued Capital Stock
Delaware
law generally does not require stockholder approval for any issuance of
authorized shares. Additional shares may be issued for a variety of corporate
purposes, including to raise additional capital or to facilitate
acquisitions.
One of
the effects of the existence of unissued and unreserved common stock and
preferred stock may be to enable our board of directors to issue shares to
persons friendly to current management, which issuance could render more
difficult or discourage an attempt to obtain control of our company by means of
a merger, tender offer, proxy contest or otherwise, and thereby protect the
continuity of our management and possibly deprive the stockholders of
opportunities to sell their shares of common stock at a premium to prevailing
market prices.
Certain
Anti-Takeover Effects of Provisions of Our Certificate of Incorporation and
Bylaws
Our
certificate of incorporation and bylaws also contain provisions that we describe
in the following paragraphs, which may delay, defer, discourage or prevent a
change in control of our company, the removal of our existing management or
directors, or an offer by a potential acquirer to our stockholders, including an
offer by a potential acquirer at a price higher than the market price for the
stockholders’ shares.
Special Stockholders’
Meetings. Our certificate of incorporation provides that
special meetings of the stockholders may be called only by the chairman of the
board, the president or, upon the written request of a majority of the board of
directors.
Classified Board of
Directors. Our certificate of incorporation provides that our
board of directors is to be divided into three classes, designated as Class I,
Class II and Class III. At each annual meeting of stockholders, successors to
the directors whose terms expired at that annual meeting will be elected for a
three-year term.
Certain Board Vacancies to
be Filled by Remaining Directors. Our certificate of incorporation
provides that any vacancies on our board due to newly created directorships
resulting from an increase in the number of directors and any vacancies as a
result of death, resignation, disqualification, removal or other cause will be
filled by the affirmative vote of the majority of the remaining directors, even
if such directors constitute less than a quorum.
Requirements for Advance
Notification of Stockholder Proposals. Our bylaws establish
advance notice procedures with respect to stockholder proposals and the
nomination of candidates for election as directors. These provisions may
preclude stockholders from bringing matters before a stockholders’ meeting or
from making nominations for directors at a stockholders’ meeting.
Action by Written
Consent. Under our certificate of incorporation and bylaws,
our stockholders may not take action by written consent.
No Cumulative
Voting. Our certificate of incorporation and bylaws do not
provide for cumulative voting in the election of directors.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock Transfer and
Trust Company.
We may
issue warrants for the purchase of debt securities, common stock, preferred
stock or other securities. Warrants may be issued independently or together with
debt securities, common stock, preferred stock or other securities offered by
any prospectus supplement and may be attached to or separate from any such
offered securities. Series of warrants may be issued under a separate warrant
agreement entered into between us and a bank or trust company, as warrant agent,
all as will be set forth in the prospectus supplement relating to the particular
issue of warrants. The warrant agent would act solely as our agent in connection
with the warrants and would not assume any obligation or relationship of agency
or trust for or with any holders of warrants or beneficial owners of
warrants.
You
should refer to the provisions of the warrant agreement that will be filed with
the SEC in connection with the offering of warrants for the complete terms of
the warrant agreement.
Prior to
the exercise of any warrants, holders of such warrants will not have any rights
of holders of the securities purchasable upon such exercise, including the right
to receive payments of dividends, or the right to vote such underlying
securities.
We may
issue rights to purchase debt securities, preferred stock, common stock or
depositary shares. These rights may be issued independently or together with any
other security offered hereby and may or may not be transferable by the
stockholder receiving the rights in such offering. In connection with any
offering of such rights, we may enter into a standby arrangement with one or
more underwriters or other purchasers pursuant to which the underwriters or
other purchasers may be required to purchase any securities remaining
unsubscribed for after such offering.
Each
series of rights will be issued under a separate rights agreement which we will
enter into with a bank or trust company, as rights agent, all as set forth in
the applicable prospectus supplement. The rights agent will act solely as our
agent in connection with the certificates relating to the rights and will not
assume any obligation or relationship of agency or trust with any holders of
rights certificates or beneficial owners of rights. We will file the rights
agreement and the rights certificates relating to each series of rights with the
SEC, and incorporate them by reference as an exhibit to the registration
statement of which this prospectus is a part on or before the time we issue a
series of rights.
The
applicable prospectus supplement will describe the specific terms of any
offering of rights for which this prospectus is being delivered, including the
following:
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the
date of determining the stockholders entitled to the rights
distribution;
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the
number of rights issued or to be issued to each
stockholder;
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the
exercise price payable for each share of debt securities, preferred stock,
common stock or other securities upon the exercise of the
rights;
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the
number and terms of the shares of debt securities, preferred stock, common
stock or other securities which may be purchased per each
right;
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the
extent to which the rights are
transferable;
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the
date on which the holder’s ability to exercise the rights shall commence,
and the date on which the rights shall
expire;
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the
extent to which the rights may include an over-subscription privilege with
respect to unsubscribed securities;
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if
applicable, the material terms of any standby underwriting or purchase
arrangement entered into by us in connection with the offering of such
rights; and
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any
other terms of the rights, including the terms, procedures, conditions and
limitations relating to the exchange and exercise of the
rights.
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The
description in the applicable prospectus supplement of any rights that we may
offer will not necessarily be complete and will be qualified in its entirety by
reference to the applicable rights certificate, which will be filed with the
SEC.
As
specified in the applicable prospectus supplement, we may issue units consisting
of one or more debt securities, shares of common stock or preferred stock,
warrants or any combination of such securities. In addition, the prospectus
supplement relating to units will describe the terms of any units we issue,
including as applicable:
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the
designation and terms of the units and the securities included in the
units;
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any
provision for the issuance, payment, settlement, transfer or exchange of
the units;
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the
date, if any, on and after which the units may be transferable
separately;
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whether
we will apply to have the units traded on a securities exchange or
securities quotation system;
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any
material United States federal income tax consequences;
and
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how,
for United States federal income tax purposes, the purchase price paid for
the units is to be allocated among the component
securities.
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The
following summarizes some of the general provisions of the deposit agreement and
of the depositary shares and depositary receipts, other than pricing and related
terms, which will be disclosed in a prospectus supplement. You should read
the particular terms of any depositary shares and any depositary receipts that
are offered by us and any deposit agreement relating to a particular series of
preferred stock which will be described in more detail in a prospectus
supplement. The prospectus supplement will also state whether any of the
generalized provisions summarized below do not apply to the depositary shares or
depositary receipts being offered. A form of deposit agreement, including the
form of depositary receipt, will be filed as an exhibit to the registration
statement of which this prospectus forms a part.
General
We may,
at our option, elect to offer fractional shares or multiple shares of preferred
stock, rather than whole individual shares of preferred stock. If we decide to
do so, we will issue the preferred stock in the form of depositary shares. Each
depository share will represent a fraction or multiple of a share of a
particular series of preferred stock and will be evidenced by depositary
receipts issued pursuant to the deposit agreement. Depositary receipts will be
distributed to those persons purchasing the fractional or multiple shares of
preferred stock in accordance with the terms of the prospectus supplement or
other offering materials.
The
shares of any series of preferred stock represented by depositary shares will be
deposited under a deposit agreement between us and a bank or trust company
selected by us having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000, as preferred stock
depositary. Each owner of a depositary share will be entitled to all the rights
and preferences of the underlying preferred stock, including dividend, voting,
redemption, conversion and liquidation rights, in proportion to the applicable
fraction of a share of preferred stock represented by the depositary
share.
Dividends
and Other Distributions
The
preferred stock depositary will distribute all cash dividends or other cash
distributions received in respect of the deposited preferred stock to the record
holders of depositary shares relating to the underlying preferred stock in
proportion to the number of the depositary shares owned by the
holders.
The
preferred stock depositary will distribute any property received by it other
than cash to the record holders of depositary shares entitled to these
distributions. If the preferred stock depositary determines that it is not
feasible to make a distribution, it may, with our approval, sell the property
and distribute the net proceeds from the sale to the holders of the depositary
shares.
Conversion
or Exchange of Preferred Stock
If a
series of preferred stock represented by depositary shares is subject to
conversion or exchange, the applicable prospectus supplement will describe the
rights or obligations of each record holder of depositary receipts to convert or
exchange the depositary shares.
Redemption
of Preferred Stock
If we
redeem a series of preferred stock represented by depositary shares, the
depositary shares will be redeemed from the proceeds received by the preferred
stock depositary resulting from the redemption, in whole or in part, of the
applicable series of preferred stock. The depositary shares will be redeemed by
the preferred stock depositary at a price per depositary share equal to the
applicable fraction of the redemption price per share payable in respect of the
shares of preferred stock so redeemed.
Whenever
we redeem shares of preferred stock held by the preferred stock depositary, the
preferred stock depositary will redeem as of the same date the number of
depositary shares representing shares of preferred stock so redeemed. If fewer
than all the depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by the preferred stock depositary by lot or ratably or
by any other equitable method as the preferred stock depositary
decides.
Withdrawal
of Preferred Stock
Unless
the related depositary shares have previously been called for redemption, any
holder of depositary shares may receive the number of whole shares of the
related series of preferred stock and any money or other property represented by
those depositary shares after surrendering the related depositary receipts at
the corporate trust office of the preferred stock depositary. Holders of
depositary shares making these withdrawals will be entitled to receive whole
shares of preferred stock on the basis set forth in the prospectus supplement or
other offering materials for that series of preferred stock.
However,
holders of whole shares of preferred stock will not be entitled to deposit that
preferred stock under the deposit agreement or to receive depositary shares for
that preferred stock after withdrawal. If the depositary shares surrendered by
the holder in connection with withdrawal exceed the number of depositary shares
that represent the number of whole shares of preferred stock to be withdrawn,
the preferred stock depositary will deliver to that holder at the same time new
depositary receipts evidencing the excess number of depositary
shares.
Voting
Deposited Preferred Stock
When the
preferred stock depositary receives notice of any meeting at which the holders
of any series of deposited preferred stock are entitled to vote, the preferred
stock depositary will mail the information contained in the notice to the record
holders of the depositary shares relating to the applicable series of preferred
stock. Each record holder of the depositary shares on the record date will be
entitled to instruct the preferred stock depositary to vote the amount of the
preferred stock represented by the holder’s depositary shares. To the extent
possible, the preferred stock depositary will vote the amount of the series of
preferred stock represented by depositary shares in accordance with the
instructions it receives.
We will
agree to take all reasonable actions that the preferred stock depositary
determines are necessary to enable the preferred stock depositary to vote as
instructed. The preferred stock depositary will vote all shares of any series of
preferred stock held by it proportionately with instructions received if it does
not receive specific instructions from the holders of depositary shares
representing that series of preferred stock.
Amendment
and Termination of the Deposit Agreement
The form
of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement may at any time be amended by agreement between us and the
preferred stock depositary. However, any amendment that imposes additional
charges or materially and adversely alters the existing rights of the holders of
depositary shares will not be effective unless the amendment has been approved
by the holders of at least a majority of the affected depositary shares then
outstanding. Holders who retain their depositary shares after the amendment
becomes effective will be deemed to agree to the amendment and will be bound by
the amended deposit agreement. The deposit agreement automatically terminates
if:
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all
outstanding depositary shares have been
redeemed;
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each
share of preferred stock has been converted into or exchanged for common
stock; or
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a
final distribution in respect of the preferred stock has been made to the
holders of depositary shares in connection with any liquidation,
dissolution or winding up of Air
Methods.
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We may
terminate the deposit agreement at any time and the preferred stock depositary
will give notice of that termination to the record holders of all outstanding
depositary receipts not less than 30 days prior to the termination date. In that
event, the preferred stock depositary will deliver or make available for
delivery to holders of depositary shares, upon surrender of the related
depositary receipts, the number of whole or fractional shares of the related
series of preferred stock as are represented by those depositary
shares.
Charges
of Preferred Stock Depositary; Taxes and Other Governmental Charges
No fees,
charges and expenses of the preferred stock depositary or any agent of the
preferred stock depositary or of any registrar will be payable by any person
other than us, except for any taxes and other governmental charges and except as
provided in the deposit agreement. If the preferred stock depositary incurs
fees, charges or expenses for which it is not otherwise liable at the election
of a holder of depositary shares or other person, that holder or other person
will be liable for those fees, charges and expenses.
Resignation
and Removal of Depositary
The
preferred stock depositary may resign at any time by delivering to us notice of
its intent to do so, and we may at any time remove the preferred stock
depositary. Any resignation or removal will take effect upon the appointment of
a successor preferred stock depositary and its acceptance of the appointment. A
successor preferred stock depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
Miscellaneous
The
preferred stock depositary will forward all reports and communications from Air
Methods which are delivered to the preferred stock depositary and which we are
required to furnish to the holders of the deposited preferred
stock.
Neither
the preferred stock depositary nor Air Methods will be liable if it is prevented
or delayed by law or any circumstances beyond its control in performing its
obligations under the deposit agreement. The obligations of Air Methods and the
preferred stock depositary under the deposit agreement will be limited to
performance with honest intentions of their duties under the agreement and they
will not be obligated to prosecute or defend any legal proceeding
in respect of any depositary shares, depositary receipts or shares of preferred
stock unless satisfactory indemnity is furnished. Air Methods and the preferred
stock depositary may rely upon written advice of counsel or accountants, or upon
information provided by holders of depositary shares or other persons believed
to be competent and on documents believed to be genuine.
Davis
Graham & Stubbs LLP of Denver, Colorado has provided its opinion on the
validity of the securities offered by this prospectus. If legal matters in
connection with offerings made under this prospectus are acted on by counsel for
the underwriters, dealers or agents, if any, that counsel will be named in the
applicable prospectus supplement.
The
consolidated financial statements and schedule of Air Methods Corporation as of
December 31, 2008 and 2007, and for each of the years in the three-year period
ended December 31, 2008, and management's assessment of the effectiveness of
internal control over financial reporting as of December 31, 2008 have been
incorporated by reference herein and in the registration statement in reliance
upon the reports of KPMG LLP, independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing. The audit report covering the December
31, 2008 financial statements refers to the Company’s adoption of Financial
Accounting Standards Board (FASB) Interpretation No. 48, Accounting for Uncertainty in Income
Taxes, effective January 1, 2007.
We are
subject to the information requirements of the Exchange Act, and in accordance
therewith file reports and other information with the SEC. Such reports and
other information filed by us can be inspected and copied at the public
reference facilities of the SEC at 100 F Street N.E., Washington, D.C. 20549.
Requests for copies should be directed to the SEC’s Public Reference Room, 100 F
Street N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
more information regarding the public reference facilities. The SEC maintains a
web site at www.sec.gov that contains reports, proxy and information statements
and other information regarding registrants, including us, that file
electronically.
We have
filed with the SEC a Registration Statement on Form S-3 (together with all
exhibits, amendments and supplements, the “Registration Statement”) of which
this prospectus constitutes a part, under the Securities Act. This prospectus
does not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules of the SEC. For
further information pertaining to us, reference is made to the Registration
Statement. Statements contained in this prospectus, any prospectus supplement or
any document incorporated herein or therein by reference concerning the
provisions of documents are necessarily summaries of such documents, and each
such statement is qualified in its entirety by reference to the copy of the
applicable document filed with the SEC. Copies of the Registration Statement are
on file at the offices of the SEC, and may be inspected without charge at those
offices, the address of which is set forth above, and copies may be obtained
from the SEC at prescribed rates. The Registration Statement has been filed
electronically through the SEC’s Electronic Data Gathering, Analysis and
Retrieval System and may be obtained through the SEC web site at
www.sec.gov.
The SEC
allows us to “incorporate by reference” the information we file with the SEC,
which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered part
of this prospectus, and information that we file later with the SEC will
automatically update and supersede the information in this
prospectus.
The
following documents, which were previously filed with the SEC pursuant to the
Exchange Act, are hereby incorporated by reference:
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our
Annual Report on Form 10-K for the year ended December 31,
2008;
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our
Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30
and September 30, 2009;
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our
Current Report on Form 8-K filed on February 11,
2009;
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the
description of our capital stock contained in our Registration Statement
on Form S-1, as amended (File No.
333-102452).
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All
reports and other documents filed by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
into this prospectus and shall be a part hereof from the date of filing of such
reports and documents.
Any
statement contained in a document incorporated or deemed to be incorporated by
reference in this prospectus shall be deemed modified, superseded or replaced
for purposes of this prospectus to the extent that a statement contained in this
prospectus, or in any subsequently filed document that also is deemed to be
incorporated by reference in this prospectus, modifies, supersedes or replaces
such statement. Any statement so modified, superseded or replaced shall not be
deemed, except as so modified, superseded or replaced, to constitute a part of
this prospectus. None of the information that we disclose under Items 2.02 or
7.01 of any Current Report on Form 8-K or any corresponding information, either
furnished under Item 9.01 or included as an exhibit therein, that we may from
time to time furnish to the SEC will be incorporated by reference into, or
otherwise included in, this prospectus, except as otherwise expressly set forth
in the relevant document. Subject to the foregoing, all information appearing in
this prospectus is qualified in its entirety by the information appearing in the
documents incorporated by reference.
You may
receive a copy of any document incorporated herein by reference (excluding
exhibits to those documents unless they are specifically incorporated by
reference in those documents), at no cost, by writing or calling Air Methods
Corporation, 7301 South Peoria, Englewood, Colorado 80112. Attention:
Secretary. The telephone number is 303-792-7400.
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The
information in this prospectus is not complete and may be
changed. Air Methods Corporation may not sell these securities
pursuant to this prospectus until the registration statement filed with
the Securities and Exchange Commission becomes effective. This
prospectus is not an offer to sell these securities and Air Methods
Corporation is not soliciting offers to buy these securities in any state
where the offer or sale is not
permitted.
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PROSPECTUS
$200,000,000
Senior
Debt Securities
Subordinated
Debt Securities
Common
Stock
Preferred
Stock
Guarantees
of Debt Securities
Warrants
Rights
Units
Depositary
Shares
_____________________
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The
following table sets forth various expenses in connection with the sale and
distribution of the securities being registered, other than underwriting
discounts and commissions. The following is a list of estimated expenses in
connection with the issuance and distribution of the securities being
registered:
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Registration
fee – Securities and Exchange Commission
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$ |
11,160 |
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Listing
Fee**
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** |
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Printing
Expenses*
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$ |
50,000 |
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Legal
Fees and Expenses*
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$ |
150,000 |
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Accounting
Fees and Expenses*
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$ |
100,000 |
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Transfer
and Disbursement Agent Fees*
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$ |
25,000 |
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Miscellaneous*
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$ |
13,210 |
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Total
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$ |
349,370 |
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_____________________
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*
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Estimated
solely for the purposes of this Item. Actual expenses may
vary.
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**
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The
listing fee is based upon the principal amount of securities listed, if
any, and is therefore not currently
determinable.
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ITEM
15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
145 of the Delaware General Corporation Law, or DGCL, authorizes a corporation
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, other
than an action by or in the right of the corporation, because such person is or
was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or other enterprise, against expenses, including
attorneys’ fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reason to believe his conduct was
unlawful. Similar indemnity is authorized for such persons against expenses,
including attorneys’ fees, actually and reasonably incurred in defense or
settlement of any such pending, completed or threatened action or suit by or in
the right of the corporation if such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and provided further that, unless a court of competent jurisdiction
otherwise provides, such person shall not have been adjudged liable to the
corporation. Any such indemnification may be made only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct. Article IX of our certificate of incorporation
generally provides that we will indemnify our directors and officers and certain
other persons to the extent permitted by the DGCL.
Section
145 of the DGCL also authorizes a corporation to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him.
As
permitted by the DGCL, Article VIII of our certificate of incorporation
eliminates in certain circumstances the monetary liability of our directors for
a breach of their fiduciary duty as directors. These provisions do not eliminate
the liability of a director:
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for
a breach of the director’s duty of loyalty to us or our
stockholders;
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for
acts or omissions by the director not in good
faith;
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for
acts or omissions by the director involving intentional misconduct or a
knowing violation of law;
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under
Section 174 of the DGCL, which relates to the declaration of dividends and
purchase or redemption of shares in violation of the DGCL;
and
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for
any transaction from which the director derived an improper personal
benefit.
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ITEM
16. EXHIBITS
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1.1
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Form
of Underwriting Agreement for Common Stock(1)
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1.2
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Form
of Underwriting Agreement for Preferred Stock(1)
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3.1
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Certificate
of Incorporation, as amended, of Air Methods Corporation (incorporated by
reference to an exhibit to the Registration Statement on Form S-1 as
declared effective on August 27, 1987).
|
|
3.2
|
|
Bylaws
of Air Methods Corporation (incorporated by reference to an exhibit to the
Current Report on Form 8-K dated June 20, 2006).
|
|
4.1
|
|
Form
of Certificate representing Common Stock (incorporated by reference to an
exhibit to the Company’s Annual Report on Form 10-K for the fiscal year
ended June 30, 1992).
|
|
4.2
|
|
Form
of Common Stock Purchase Agreement, Dated November 26, 2003 (incorporated
by reference to an exhibit to the Current Report on Form 8-K dated
December 3, 2006).
|
|
4.3
|
|
Form
of Common Stock Warrant Agreement and Certificate(1)
|
|
4.4
|
|
Form
of Preferred Stock Warrant Agreement and Certificate(1)
|
|
4.5
|
|
Form
of Senior Indenture(2)
|
|
4.6
|
|
Form
of Senior Debt Security(1)
|
|
4.7
|
|
Form
of Subordinated Indenture(2)
|
|
4.8
|
|
Form
of Subordinated Debt Security(1)
|
|
4.9
|
|
Form
of Deposit Agreement (1)
|
|
4.10
|
|
Form
of Depositary Share(1)
|
|
4.11
|
|
Form
of Warrant Agreement, including Form of Warrant Certificate
(1)
|
|
4.12
|
|
Form
of Guarantee Agreement
(1)
|
|
4.13
|
|
Rights
Agreement, including Form of Rights Certificate (1)
|
|
5.1
|
|
Opinion
of Davis Graham & Stubbs LLP(2)
|
|
12.1
|
|
Computation
of Ratio of Earnings to Fixed Charges(2)
|
|
23.1
|
|
Consent
of Davis Graham & Stubbs LLP (included in Exhibit
5.1).
|
|
23.2
|
|
Consent
of KPMG LLP(2)
|
|
24.1
|
|
Power
of Attorney(2)
|
|
25.1
|
|
Form
T-1 Statement of Eligibility of Trustee for the Senior Indenture(3)
|
|
25.2
|
|
Form
T-1 Statement of Eligibility of Trustee for the Subordinated
Indenture(3)
|
______________
|
(1)
|
To
be filed by an amendment to this registration statement or as an exhibit
to a report pursuant to Section 13(a) or 15(d) of the Exchange Act and
incorporated herein by reference if we enter into any such agreement or
issue any such instrument in connection with the offer of any securities
registered hereunder.
|
|
(2)
|
Filed
with this registration statement.
|
|
(3)
|
To
be incorporated herein by reference from a subsequent filing in accordance
with section 305(b)(2) of the Trust Indenture Act of
1939.
|
ITEM
17. UNDERTAKINGS
(a) We
hereby undertake:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933, as amended (the “Securities Act”);
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in 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 (the “Commission”) pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a
20% 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) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in the reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 (the “Exchange Act”) that are incorporated by reference in this
Registration Statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act to any
purchaser:
(i) If
the Registrant is relying on Rule 430B:
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the Registration Statement as of the date the filed prospectus was
deemed part of and included in the Registration Statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or
the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus relates, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(ii) If
the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness;
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 first use, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such date of first use.
(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
Registrant undertakes that in a primary offering of securities of the 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
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 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
Registrant or used or referred to by the Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the Registrant or its securities provided by or on
behalf of the Registrant; and
(iv) Any
other communication that is an offer in the offering made by the Registrant to
the purchaser.
(b) That,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(e) If
and when applicable, the Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act (“TIA Act”) in
accordance with the rules and regulations prescribed by the Commission under
section 305(b)(2) of the TIA Act.
SIGNATURES
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 a registration statement on Form S-3 and has duly caused this
registration statement to be signed on December 3, 2009.
|
|
AIR
METHODS CORPORATION
|
|
|
|
|
|
By:
|
/s/
Aaron D. Todd
|
|
|
|
Name: Aaron
D. Todd
|
|
|
Title:
Chief Executive Officer
|
POWER
OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Aaron D.
Todd, Trent J. Carman and Sharon J. Keck, and each of them, his or her true and
lawful agent, proxy and attorney-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to (i) act on, sign and file with the Securities and
Exchange Commission any and all amendments (including post-effective amendments)
to this registration statement together with all schedules and exhibits thereto
and any subsequent registration statement filed pursuant to Rule 462(b) under
the Securities Act of 1933, together with all schedules and exhibits thereto,
(ii) act on, sign and file such certificates, instruments, agreements and other
documents as may be necessary or appropriate in connection therewith, (iii) act
on and file any supplement to any prospectus included in this registration
statement or any such amendment or any subsequent registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended and (iv)
take any and all actions which may be necessary or appropriate to be done, as
fully for all intents and purposes as he or she might or could do in person,
hereby approving, ratifying and confirming all that such agent, proxy and
attorney-in-fact or any of his substitutes may lawfully do or cause to be done
by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
on Form S-3 has
been signed by the following persons in the capacities and on the dates
indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chief
Executive Officer and Director
|
|
December
3, 2009
|
|
Aaron
D. Todd
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chief
Financial Officer, Secretary and Treasurer
|
|
December
3, 2009
|
|
Trent
J. Carman
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chief
Accounting Officer and Controller
|
|
December
3, 2009
|
|
Sharon
J. Keck
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chairman
of the Board
|
|
December
3, 2009
|
|
George
W. Belsey
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
December
3, 2009
|
|
Ralph
J. Bernstein
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
December
3, 2009
|
|
Mark
D. Carleton
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
December
3, 2009
|
|
Samuel
H. Gray
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
December
3, 2009
|
|
C.
David Kikumoto
|
|
|
|
|
|
|
|
|
|
|
/s/
MG Carl H. McNair, Jr.
|
|
Director
|
|
December
3, 2009
|
|
MG
Carl H. McNair, Jr.
|
|
|
|
|
|
|
|
|
|
|
/s/
Lowell D. Miller, Ph.D.
|
|
Director
|
|
December
3, 2009
|
|
Lowell
D. Miller, Ph.D.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
December
3, 2009
|
|
David
A. Roehr
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
December
3, 2009
|
|
Morad
Tahbaz
|
|
|
|
|
SIGNATURES
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 a registration statement 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 Denver, State of
Colorado, on December 3, 2009.
|
|
Rocky
Mountain Holdings, L.L.C.
|
|
|
|
|
|
|
|
By:
|
/s/
Aaron D. Todd
|
|
|
|
Name:
|
Aaron
D. Todd
|
|
|
|
Title:
|
Chief
Executive Officer
|
|
Pursuant
to the requirements of the Securities Act, this Registration Statement on Form
S-3 has been signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Aaron D. Todd
|
|
Chief
Executive Officer
|
|
December
3, 2009
|
|
Aaron
D. Todd
|
|
(principal
executive officer)
|
|
|
|
|
|
|
|
|
|
/s/
Trent J. Carman
|
|
Chief
Financial Officer
|
|
December
3, 2009
|
|
Trent
J. Carman
|
|
(principal
financial officer)
|
|
|
|
|
|
|
|
|
|
/s/
Sharon J. Keck
|
|
Chief
Accounting Officer
|
|
December
3, 2009
|
|
Sharon
J. Keck
|
|
(principal
accounting officer)
|
|
|
SIGNATURES
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 a registration statement 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 Denver, State of
Colorado, on December 3, 2009.
|
|
Mercy
Air Service, Inc.
|
|
|
|
|
|
|
|
By:
|
/s/
Aaron D. Todd
|
|
|
|
Name:
|
Aaron
D. Todd
|
|
|
|
Title:
|
Chief
Executive Officer
|
|
Pursuant
to the requirements of the Securities Act, this Registration Statement on Form
S-3 has been signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Aaron D. Todd
|
|
Chief
Executive Officer
|
|
December
3, 2009
|
|
Aaron
D. Todd
|
|
(principal
executive officer)
|
|
|
|
|
|
|
|
|
|
/s/
Trent J. Carman
|
|
Chief
Financial Officer
|
|
December
3, 2009
|
|
Trent
J. Carman
|
|
(principal
financial and accounting officer)
|
|
|
SIGNATURES
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 a registration statement 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 Denver, State of
Colorado, on December 3, 2009.
|
|
LifeNet,
Inc.
|
|
|
|
|
|
|
|
By:
|
/s/
Aaron D. Todd
|
|
|
|
Name:
|
Aaron
D. Todd
|
|
|
|
Title:
|
Chief
Executive Officer
|
|
Pursuant
to the requirements of the Securities Act, this Registration Statement on Form
S-3 has been signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Aaron D. Todd
|
|
Chief
Executive Officer
|
|
December
3, 2009
|
|
Aaron
D. Todd
|
|
(principal
executive officer)
|
|
|
|
|
|
|
|
|
|
/s/
Trent J. Carman
|
|
Chief
Financial Officer
|
|
December
3, 2009
|
|
Trent
J. Carman
|
|
(principal
financial and accounting officer)
|
|
|
SIGNATURES
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 a registration statement 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 Denver, State of
Colorado, on December 3, 2009.
|
|
FSS
Airholdings, Inc.
|
|
|
|
|
|
|
|
By:
|
/s/
Aaron D. Todd
|
|
|
|
Name:
|
Aaron
D. Todd
|
|
|
|
Title:
|
Chief
Executive Officer
|
|
Pursuant
to the requirements of the Securities Act, this Registration Statement on Form
S-3 has been signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Aaron D. Todd
|
|
Chief
Executive Officer
|
|
December
3, 2009
|
|
Aaron
D. Todd
|
|
(principal
executive officer)
|
|
|
|
|
|
|
|
|
|
/s/
Trent J. Carman
|
|
Chief
Financial Officer
|
|
December
3, 2009
|
|
Trent
J. Carman
|
|
(principal
financial and accounting officer)
|
|
|
EXHIBIT
INDEX
|
|
|
|
|
1.1
|
|
Form
of Underwriting Agreement for Common Stock(1)
|
|
1.2
|
|
Form
of Underwriting Agreement for Preferred Stock(1)
|
|
3.1
|
|
Certificate
of Incorporation, as amended, of Air Methods Corporation (incorporated by
reference to an exhibit to the Registration Statement on Form S-1 as
declared effective on August 27, 1987).
|
|
3.2
|
|
Bylaws
of Air Methods Corporation (incorporated by reference to an exhibit to the
Current Report on Form 8-K dated June 20, 2006).
|
|
4.1
|
|
Form
of Certificate representing Common Stock (incorporated by reference to an
exhibit to the Company’s Annual Report on Form 10-K for the fiscal year
ended June 30, 1992).
|
|
4.2
|
|
Form
of Common Stock Purchase Agreement, Dated November 26, 2003 (incorporated
by reference to an exhibit to the Current Report on Form 8-K dated
December 3, 2006).
|
|
4.3
|
|
Form
of Common Stock Warrant Agreement and Certificate(1)
|
|
4.4
|
|
Form
of Preferred Stock Warrant Agreement and Certificate(1)
|
|
|
|
Form
of Senior Indenture(2)
|
|
4.6
|
|
Form
of Senior Debt Security(1)
|
|
|
|
Form
of Subordinated Indenture(2)
|
|
4.8
|
|
Form
of Subordinated Debt Security(1)
|
|
4.9
|
|
Form
of Deposit Agreement (1)
|
|
4.10
|
|
Form
of Depositary Share(1)
|
|
4.11
|
|
Form
of Warrant Agreement, including Form of Warrant Certificate
(1)
|
|
4.12
|
|
Form
of Guarantee Agreement
(1)
|
|
4.13
|
|
Rights
Agreement, including Form of Rights Certificate (1)
|
|
|
|
Opinion
of Davis Graham & Stubbs LLP(2)
|
|
|
|
Computation
of Ratio of Earnings to Fixed Charges(2)
|
|
23.1
|
|
Consent
of Davis Graham & Stubbs LLP (included in Exhibit
5.1).
|
|
|
|
Consent
of KPMG LLP(2)
|
|
24.1
|
|
Power
of Attorney(2)
|
|
25.1
|
|
Form
T-1 Statement of Eligibility of Trustee for the Senior Indenture(3)
|
|
25.2
|
|
Form
T-1 Statement of Eligibility of Trustee for the Subordinated
Indenture(3)
|
__________________
|
(1)
|
To
be filed by an amendment to this registration statement or as an exhibit
to a report pursuant to Section 13(a) or 15(d) of the Exchange Act and
incorporated herein by reference if we enter into any such agreement or
issue any such instrument in connection with the offer of any securities
registered hereunder.
|
|
(2)
|
Filed
with this registration statement.
|
|
(3)
|
To
be incorporated herein by reference from a subsequent filing in accordance
with section 305(b)(2) of the Trust Indenture Act of
1939.
|
