As filed with the Securities and Exchange Commission on March 15, 2001
Registration No. 333-55144
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
AMENDMENT NO. 1
TO
FORM
S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
CONTINENTAL AIRLINES, INC.
CONTINENTAL AIRLINES FINANCE TRUST II
(Exact name of Registrants as specified in their charters)
Delaware 74-2099724
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1600 Smith Street
Houston, Texas 77002
(713) 324-2950
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
Jeffery A. Smisek, Esq.
Executive Vice President, General Counsel and Secretary
Continental Airlines Inc.
Administrative Agent, Continental Airlines Finance Trust II
1600 Smith Street, Dept. HQSEO
Houston, Texas 77002
(713) 324-5000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
Michael L. Ryan, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
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Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
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, please 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: |_| _________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering: |_| _________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: |_|
-------------------------
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.
================================================================================
Subject to completion, dated March 15, 2001
Prospectus
5,000,000 TIDES SM
Continental Airlines Finance Trust II
6% Convertible Preferred Securities,
Term Income Deferrable Equity Securities (TIDES)SM*
(liquidation amount $50 per each of the TIDES)
guaranteed by, and convertible into Class B common stock of,
[LOGO OF CONTINENTAL AIRLINES, INC.]
Continental Airlines, Inc.
---------------------------------
The selling holders may offer, from time to time:
o 6% Convertible Preferred Securities, Term Income Deferrable Equity
Securities (TIDES)SM, or TIDES SM of Continental Airlines Finance
Trust II
o 6% Convertible Junior Subordinated Debentures due 2030 of
Continental Airlines, Inc.
o shares of Class B common stock of Continental Airlines, Inc.
Continental Airlines Finance Trust II is a Delaware business trust. The
TIDES represent undivided beneficial ownership interests in the assets of
Continental Airlines Finance Trust II.
The selling holders may sell these securities from time to time
directly to purchasers or through agents, underwriters or dealers. If required,
the names of any other selling holders, agents or underwriters involved in the
sale of these securities and the applicable agent's commission, dealer's
purchase price or underwriter's discount, if any, will be set forth in a
supplement to this prospectus. This prospectus may not be used to offer and sell
these securities unless accompanied by a prospectus supplement. We will not
receive any proceeds from the sale of these securities.
*The terms Term Income Deferrable Equity Securities (TIDES)SM and
TIDESSM are registered service marks of Credit Suisse First Boston Corporation.
---------------------------------
You should carefully consider matters discussed under the caption "Risk
Factors" beginning on page 8.
These securities have not been approved or disapproved by the
Securities and Exchange Commission or any state securities commission nor has
the Securities and Exchange Commission or any state securities commission passed
upon the accuracy or adequacy of this prospectus. Any representation to the
contrary is a criminal offense.
---------------------------------
The date of this prospectus is March [ ], 2001.
TABLE OF CONTENTS
Page
WHERE YOU CAN FIND MORE INFORMATION................................ii
CAUTIONARY STATEMENT ABOUT FORWARD-LOOKING STATEMENTS.............iii
PROSPECTUS SUMMARY..................................................1
RISK FACTORS........................................................7
USE OF PROCEEDS....................................................14
RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS..............................14
ACCOUNTING TREATMENT OF THE TIDES..................................14
CONTINENTAL AIRLINES FINANCE TRUST II..............................14
DESCRIPTION OF TIDES...............................................16
DESCRIPTION OF DEBENTURES..........................................31
DESCRIPTION OF GUARANTEE...........................................38
RELATIONSHIP AMONG THE TIDES,
THE DEBENTURES AND THE GUARANTEE...................................40
DESCRIPTION OF CAPITAL STOCK.......................................42
TAX CONSEQUENCES...................................................48
CERTAIN ERISA CONSIDERATIONS.......................................52
REGISTRATION RIGHTS................................................54
SELLING HOLDERS....................................................54
PLAN OF DISTRIBUTION...............................................57
LEGAL MATTERS......................................................58
EXPERTS ..........................................................58
As used in this prospectus, (a) the "indenture" means the Indenture
between Continental Airlines, Inc. and Wilmington Trust Company, as trustee (the
"debenture trustee") relating to the debentures, (b) the "declaration of trust"
means the Amended and Restated Declaration of Trust relating to the trust among
Continental Airlines, Inc., as trust sponsor (the "sponsor"), Wilmington Trust
Company, as property trustee, Wilmington Trust Company, as Delaware trustee, the
individuals named as administrative trustees therein (the "administrative
trustees" and collectively with the property trustee and the Delaware trustee,
the "trustees") and the holders from time to time of undivided beneficial
interests in the assets of the trust, (c) the "guarantee" means the Preferred
Securities Guarantee Agreement between Continental Airlines, Inc. and Wilmington
Trust Company, as guarantee trustee, (d) the "common securities" means the
common securities issued by the trust, (e) the "trust securities" means the
TIDES and the common securities, (f) unless the context requires otherwise, the
"common stock" means the Class B common stock of Continental Airlines, Inc., par
value $.01 per share, (g) the "debentures" means the 6% Convertible Junior
Subordinated Debentures due 2030 issued by us, and (h) the "offered securities"
means the TIDES and underlying common stock. Unless the context requires
otherwise, "Continental," "we," "us," "our" and similar terms in this prospectus
refer solely to Continental Airlines, Inc. and not the trust or any of our other
consolidated subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC under the Securities Exchange Act. You may read
and copy this information at the following locations of the SEC:
Judiciary Plaza Seven World Trade Center Citicorp Center
450 Fifth Street, N.W. 13th Floor 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661
You may also obtain copies of this information by mail from the Public
Reference Room of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. You may obtain information on the operation of the Public
Reference Room by calling the SEC at (800) SEC-0330.
The SEC also maintains an internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
reports electronically with the SEC. The address of that site is
http://www.sec.gov.
You may also inspect reports, proxy statements and other information
about us at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005.
The SEC allows us to incorporate by reference information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be part of this prospectus, except
for any information that is superseded by subsequent incorporated documents or
by information that is included directly in this prospectus.
This prospectus includes by reference the documents listed below that
we previously have filed with the SEC and that are not delivered with this
prospectus. They contain important information about our company and its
financial condition.
Continental SEC Filings (File No. 0-9781) Date Filed
----------------------------------------- ----------
Registration Statement on Form 8-A/A#3, which February 6, 2001
contains the description of our Class B
common stock, and any amendment or report
filed for the purpose of updating such
description
Registration Statement on Form 8-A/A, which January 22, 2001
contains the description of the Series A
Junior Participating Preferred Stock Purchase
Rights associated with our Class B common
stock, and any amendment or report filed for
the purpose of updating such description
Annual Report on Form 10-K for the year February 6, 2001
ended December 31, 2000
We are also incorporating by reference all additional documents that we
file with the SEC under Section 13(a) or 15(d) of the Securities Exchange Act
after the date of this prospectus.
You may obtain any of these incorporated documents from us without
charge, excluding any exhibits to those documents unless the exhibit is
specifically incorporated by reference in such document. You may obtain
documents incorporated by reference in this prospectus by requesting them from
us in writing or by telephone at the following address:
Continental Airlines, Inc.
1600 Smith Street, Dept. HQSEO
Houston, Texas 77002
Attention: Secretary (713) 324-2950
If you request any incorporated documents from us, we will mail them to
you by first class mail, or another equally prompt means, within one business
day after we receive your request.
CAUTIONARY STATEMENT ABOUT FORWARD-LOOKING STATEMENTS
This prospectus and the documents we incorporate by reference may
contain statements that constitute "forward-looking statements" within the
meaning of Section 27A of the Securities Act and Section 21E of the Securities
Exchange Act. Forward-looking statements include any statements that predict,
forecast, indicate or imply future results, performance or achievements, and may
contain the words "believe," "anticipate," "expect," "estimate," "project,"
"will be," "will continue," "will result," or words or phrases of similar
meaning.
Any such forward-looking statements are not assurances of future
performance and involve risks and uncertainties. Actual results may vary
materially from anticipated results for a number of reasons, including those
stated in our SEC reports incorporated in this prospectus by reference under the
caption "Risk Factors."
All forward-looking statements attributable to us are expressly
qualified in their entirety by the cautionary statements above.
PROSPECTUS SUMMARY
The following summary information is qualified in its entirety by the
information contained elsewhere in this prospectus.
CONTINENTAL AIRLINES, INC.
We are a major U.S. air carrier engaged in the business of transporting
passengers, cargo and mail. We are the fifth largest U.S. airline, as measured
by 2000 revenue passenger miles, and, together with our wholly owned
subsidiaries, Continental Express, Inc. and Continental Micronesia, Inc., served
230 airports worldwide at January 19, 2001. As of January 19, 2001, we flew to
136 domestic and 94 international destinations and offered additional connecting
service through alliances with domestic and foreign carriers. We directly served
16 European cities, seven South American cities, Tel Aviv and Tokyo and are one
of the leading airlines providing service to Mexico and Central America, serving
more destinations there than any other U.S. airline. Through our Guam hub,
Continental Micronesia provides extensive service in the western Pacific,
including service to more Japanese cities than any other U.S. carrier.
We operate our route system primarily through domestic hubs at Newark
International Airport, George Bush Intercontinental Airport in Houston, Hopkins
International Airport in Cleveland, and a Pacific hub on the island of Guam. We
are the primary carrier at each of these hubs, accounting for 55%, 78%, 50% and
68% of average daily jet departures from these locations, respectively, as of
January 19, 2001 (in each case excluding regional jets). Each of our domestic
hubs is located in a large business and population center, contributing to a
high volume of "origin and destination" traffic. The Guam hub is strategically
located to provide service from Japanese and other Asian cities to popular
resort destinations in the western Pacific.
We are a Delaware corporation, with executive offices located at 1600
Smith Street, Houston, Texas 77002. Our telephone number is (713) 324-2950.
NORTHWEST TRANSACTION
On November 15, 2000, we executed various agreements, which we refer to
as the Northwest Agreements, with Northwest Airlines Corporation and certain of
its affiliates (which we refer to collectively as Northwest) under which we,
among other things, repurchased most of the Class A common stock owned by
Northwest, reclassified all issued shares of Class A common stock into Class B
common stock, and made other adjustments to our corporate and alliance
relationship with Northwest. Our stockholders ratified this reclassification and
the related charter amendments at a special stockholders meeting held on January
22, 2001. We refer to these events collectively as the Northwest Transaction.
Under the Northwest Agreements, we and Northwest supported an adjournment of the
Department of Justice, or DOJ, lawsuit pending closing of the transaction (which
adjournment was granted by the U.S. District Court on November 6, 2000) and
sought dismissal of the DOJ litigation, which dismissal was granted on January
22, 2001. The Northwest Agreements have, among other matters, effected the
following as of January 22, 2001:
Repurchase and Recapitalization. We repurchased from Northwest
6,685,279 shares of Class A common stock for $450 million in cash. We
refer to this transaction as the repurchase. Immediately thereafter,
the remaining 1,975,945 shares of Class A common stock held by
Northwest (as well as all other issued shares of Class A common stock)
were reclassified into Class B common stock at an exchange ratio of
1.32 shares of common stock per share of Class A common stock. We refer
to this event as the recapitalization. The repurchase, the
reclassification and the related termination of a limited proxy reduced
Northwest's general voting power with respect to us from approximately
59.6% to approximately 7.2%.
Northwest Alliance. The existing alliance with Northwest
Airlines, Inc. was amended to extend its term through 2025 and to add
additional termination rights (principally related to changes of
control of Northwest Airlines or us and certain redemptions of the
preferred stock described below).
Preferred Stock. In connection with the amendment to the
Northwest Alliance, we issued to Northwest Airlines one share of a new
series of preferred stock, which we refer to as the Preferred Stock,
for a nominal price. The Preferred Stock gives Northwest Airlines the
right to block, during the term of the Northwest Alliance, or if
earlier, until the Preferred Stock becomes redeemable, on:
o certain business combinations and similar changes of control
transactions involving us and a third party major air carrier,
o certain amendments to our rights plan (or redemption of those
rights),
o any dividend or distribution of all or substantially all of our
assets, and
o certain reorganizations and restructuring transactions involving
us.
The Preferred Stock is redeemable by us at a nominal price (and the
blocking rights eliminated) if:
o Northwest Airlines transfers or encumbers the Preferred Stock,
o there is a change of control of Northwest involving a third party
major air carrier,
o the Northwest Alliance terminates or expires (other than as a
result of a breach by us), or
o Northwest materially breaches its standstill obligations to us or
triggers our rights agreement (described below under "Description
of Capital Stock").
Standstill Agreement. We entered into a customary standstill
agreement with Northwest that contains standstill and conduct
restrictions similar to those that were contained in the parties'
corporate governance agreement (now terminated), except that all of our
securities now owned by Northwest following the repurchase are to be
voted neutrally on all matters other than a Continental change of
control (in which case they may be voted at Northwest's discretion) and
the percentage of our equity permitted to be owned by Northwest will be
adjusted downward to reflect its holdings following the repurchase and
recapitalization, and upward if the number of shares of our common
stock outstanding decreases.
Rights Agreement. Our rights agreement was amended to take into
account the effects of the recapitalization and the repurchase, and to
eliminate Northwest as an "Exempt Person." See "Description of Capital
Stock--Preferred Stock Purchase Rights--Exempt Person."
Charter Amendment. At the special meeting of our stockholders
held on January 22, 2001, our charter was amended to:
o reclassify the Class A common stock pursuant to the
recapitalization,
o eliminate references to Class A and Class D common stock,
o eliminate the special rights of a Northwest affiliate that owned
Class A common stock, and
o provide that until the termination of the Preferred Stock
blocking rights (or the earlier redemption of the Preferred
Stock), we will maintain and renew our rights agreement and,
without the approval of the holder of the Preferred Stock, will
not amend the rights agreement or redeem the rights thereunder to
permit any change of control of our company involving a third
party major air carrier.
Governance Agreement and Supplemental Agreement. The corporate
governance agreement and the related supplemental agreement with
certain parties who are affiliates of Northwest were each terminated at
the closing of the transactions described in this section.
We also entered into an agreement with 1992 Air, Inc. pursuant to which
we purchased and terminated the "rights of offer and re-offer" covering the
Class A common stock formerly owned by Northwest in exchange for a payment from
us of $10 million in cash.
In the Northwest Agreement, Northwest irrevocably waived the
pre-emptive rights contained in its corporate governance agreement with us as
they related to the original offering of the TIDES.
THE OFFERING
The TIDES were originally issued by the trust and sold by Credit Suisse
First Boston Corporation and UBS Warburg LLC (the "initial purchasers") in a
transaction exempt from the registration requirements of the Securities Act, to
persons reasonably believed by such initial purchasers to be "qualified
institutional buyers" (as defined in Rule 144A under the Securities Act). The
trust used all of the proceeds from the issuance of the TIDES and the concurrent
sale of its common securities to us to purchase debentures from us.
Issuer.......................Continental Airlines Finance Trust II is a Delaware
business trust and our subsidiary. Substantially
all the assets of the trust consist of debentures
issued by us. We own all of the outstanding common
securities of the trust. The address of the trust's
principal office is c/o Continental Airlines, Inc.,
1600 Smith Street, Houston, Texas 77002, and its
telephone number is (713) 324-2950.
Securities Registered........5,000,000 TIDES, $257,732,000 in aggregate
principal amount of the 6% Convertible Junior
Subordinated Debentures, due November 15, 2030,
4,166,667 shares of common stock issuable upon
conversion of the TIDES (subject to adjustment) and
the guarantee of the TIDES.
Distributions................Distributions on the TIDES are payable at the
annual rate of 6% of the $50 liquidation amount per
TIDES. Distributions are cumulative and began to
accumulate on the date of original issuance of the
TIDES. Distributions are payable quarterly, in
arrears, on February 15, May 15, August 15 and
November 15 of each year, beginning February 15,
2001, unless we defer interest payments on the
debentures.
Distribution Deferral
Provisions...................We can, on one or more occasions, defer the
interest payments due on the debentures for up to
20 consecutive quarters unless an event of default
under the debentures has occurred and is
continuing. However, we cannot defer interest
payments beyond the maturity date of the
debentures, which is November 15, 2030. If we defer
interest payments on the debentures, the trust will
also defer distributions on the TIDES. The trust
will be able to pay distributions on the TIDES only
if and to the extent it receives interest payments
from us on the debentures. During any deferral
period, distributions will continue to accumulate
quarterly at an annual rate of 6% of the
liquidation amount of $50 per TIDES. Also, the
deferred distributions will themselves accrue
additional distributions at an annual rate of 6%,
to the extent permitted by law. The trust will send
you written notice of any deferral of distributions
on the TIDES not later than 10 days prior to the
record date for the related TIDES distribution.
During any period in which we defer interest
payments on the debentures, in general, the trust
cannot:
o declare or pay any dividend or distribution on
our capital stock,
o redeem, purchase, acquire or make a liquidation
payment on any of our capital stock,
o make any interest, principal or premium payment
on, or repurchase or redeem any of our debt
securities that rank equally with or junior to
the debentures, or
o make any payment on any guarantee by us of the
debt securities of any of our subsidiaries if
the guarantee ranks equal or junior to the
debentures.
If an interest payment deferral occurs, you will
continue to recognize interest income for U.S.
federal income tax purposes in advance of your
receipt of any corresponding cash distribution.
If you convert your TIDES during any interest
payment deferral period, you will not receive any
cash payment for any deferred distributions.
Conversion into Common
Stock........................You may convert each TIDES into shares of our
common stock at the initial conversion price of $60
per share of our common stock (equivalent to an
initial conversion rate of approximately 0.8333
shares of common stock for each of the TIDES). The
last reported sale price of our common stock on the
New York Stock Exchange on March 14, 2001 was
$41.44 per share. In connection with any conversion
of the TIDES, the property trustee of the trust
will exchange those TIDES for debentures having a
principal amount equal to the stated liquidation
amount of $50 per TIDES exchanged. The property
trustee will then immediately convert the
debentures into our common stock. We will not issue
any fractional shares of common stock as a result
of the conversion. Instead, we will pay the
fractional interest in cash based on the then
current market value of our common stock. Also, we
will not issue any additional shares of our common
stock upon conversion of the TIDES to pay for any
accrued but unpaid distributions on the TIDES at
the time of conversion.
Redemption by the Trust......The trust will redeem all outstanding TIDES when
the debentures are paid at maturity on November 15,
2030. In addition, we can make the trust redeem
some or all of the TIDES at any time on or after
November 20, 2003 by redeeming the debentures at
the redemption prices described on page 35, plus
any accrued and unpaid distributions thereon. If
that happens, the trust will use the cash it
receives from our redemption of the debentures to
redeem, on a pro rata basis, TIDES of an aggregate
liquidation amount equal to the aggregate principal
amount of the debentures redeemed.
Tax Event or Investment
Company Event Redemption
or Distribution............. Upon the occurrence of a tax event described below
or a change in law that would require the trust to
register as an investment company under the
Investment Company Act of 1940, we may be required
to dissolve the trust and, after satisfaction of
liabilities to creditors of the trust as required
by applicable law, exchange all outstanding TIDES
for debentures. In certain limited circumstances,
upon the occurrence of a tax event, we will have
the right to redeem the debentures in whole, but
not in part, at a price equal to their aggregate
principal amount plus any accrued and unpaid
interest. Additionally, upon the occurrence of a
tax event, we may elect to leave the TIDES
outstanding and pay additional amounts to the trust
so that the distributions to holders of the TIDES
are not reduced because of the tax event.
A tax event generally means specified tax changes
that could result in:
o the trust being subject to U.S. federal income
taxes or more than a de minimis amount of other
governmental charges, or
o the non-deductibility of interest payments on
the debentures.
Liquidation Amount...........If the trust is liquidated and the debentures are
not distributed to you, you will generally be
entitled to receive, after satisfaction of
liabilities to creditors of the trust as required
by applicable law, $50 per TIDES plus accrued and
unpaid distributions on each TIDES you hold.
The Guarantee................We have irrevocably guaranteed the trust's payment
obligations on the TIDES to the extent described in
this prospectus. Under the guarantee, we guarantee
the trust's payment obligations, but only to the
extent the trust has sufficient funds to make
payments on the TIDES. If we do not make payments
on the debentures, the trust will not have
sufficient funds to make payments on the TIDES, in
which case you will be unable to rely on the
guarantee for payment. Our obligations under the
guarantee are unsecured and junior to our
obligations to make payments on all of our senior
obligations, except as discussed elsewhere in this
prospectus.
Liquidation of the Trust.....We have the right to dissolve the trust at any
time. If we exercise this right, the trust will,
after satisfaction of liabilities to creditors of
the trust as required by applicable law, redeem the
TIDES by distributing the debentures to you. If a
tax event or a change in law that could require the
trust to register as an investment company under
the Investment Company Act of 1940 occurs, the
trust may be required to redeem the TIDES by
distributing the debentures to you.
Voting Rights................Generally, you do not have any voting rights as a
holder of TIDES. However, in limited circumstances,
the holders of the TIDES, by majority vote, will
have the right to elect a special trustee.
Ranking......................Payments on the TIDES are made pro rata with the
common securities except as described under the
"Description of TIDES--Subordination of Common
Securities" section of this prospectus. The
debentures will be unsecured and subordinated to
all of our senior obligations and be effectively
subordinated to indebtedness of our subsidiaries.
Please read the "Description of
Debentures--Subordination" section of this
prospectus. At December 31, 2000, our senior
obligations included approximately $3.7 billion of
debt and capital lease obligations. Our senior
obligations also included certain minimum annual
commitments under long-term operating leases of
aircraft or aircraft engines.
Form of TIDES................The TIDES are represented by a global certificate
registered in the name of Cede & Co., as nominee
for The Depository Trust Company, or DTC.
Beneficial interests in the TIDES are evidenced by
records maintained by DTC or the participants in
DTC. Except under limited circumstances, TIDES in
certificated form will not be issued in exchange
for the global certificate or certificates.
Use of Proceeds..............The selling holders will receive all of the net
proceeds from the resale of the offered securities.
Neither we nor the trust will receive any such
proceeds.
Registration Rights..........Under a registration rights agreement, we and the
trust have agreed to use our best efforts to keep
the shelf registration statement, of which this
prospectus is a part, effective and useable
(subject to certain exceptions) for two years or
such other period as shall be required under Rule
144(k) of the Securities Act or such shorter period
ending when all the TIDES, debentures and common
stock issuable upon their conversion that are
covered by the registration statement have been
sold. Special interest and special distributions
will accrue on the debentures and the TIDES if we
or the trust fail to meet our obligations under the
registration rights agreement.
Absence of Market for
the TIDES....................The TIDES were initially a privately placed
security. As a result of the effectiveness of the
registration statement of which this prospectus is
a part, the TIDES are no longer restricted
securities under the Securities Act. However, there
is currently no market for the TIDES. Although the
initial purchasers have informed us that they
currently intend to make a market in the TIDES, the
initial purchasers are not obligated to do so, and
any market making may be discontinued at any time
without notice. Accordingly, you cannot be assured
that a liquid market for the TIDES will develop.
Trading......................Our common stock is listed on the New York Stock
Exchange under the symbol "CAL." The common stock
issuable upon conversion of the TIDES has been
listed on the New York Stock Exchange.
RISK FACTORS
Investing in the TIDES involves risk. In addition to the risk factors
described in our Annual Report on Form 10-K for the year ended December 31,
2000, which is incorporated by reference in this prospectus, you should
carefully consider the risk factors described below, in addition to the other
information contained or incorporated by reference in this prospectus, before
making an investment decision. The risks and uncertainties described below and
incorporated by reference are not the only risks we face. Additional risks and
uncertainties not presently known to us or that we currently deem immaterial may
impair our business operations.
Each of the following factors could have a material adverse affect on
our business, financial condition or results of operations, causing the trading
price of the TIDES and our common stock to decline and the loss of all or part
of your investment.
Risk Factors Relating to Continental
High Leverage and Significant Financing Needs
We have a higher proportion of debt compared to our equity capital than
some of our principal competitors. In addition, we have less cash resources than
some of our principal competitors. A majority of our property and equipment is
subject to liens securing indebtedness. Accordingly, we may be less able than
some of our competitors to withstand a prolonged recession in the airline
industry or respond as flexibly to changing economic and competitive conditions.
As of December 31, 2000, we had approximately $3.7 billion (including
current maturities) of long-term debt and capital lease obligations and
approximately $1.9 billion of Continental-obligated mandatorily redeemable
preferred securities of trust, redeemable common stock and common stockholders'
equity. Also at December 31, 2000, we had $1.4 billion in cash, cash equivalents
and short-term investments.
We have substantial commitments for capital expenditures, including for
the acquisition of new aircraft. As of December 31, 2000, we had agreed to
acquire or lease a total of 86 additional Boeing jet aircraft through 2005. We
anticipate taking delivery of 35 Boeing jet aircraft in 2001. We also have
options for an additional 105 aircraft (exercisable subject to certain
conditions). The estimated aggregate cost of our firm commitments for Boeing
aircraft is approximately $4 billion. We currently plan to finance our new
Boeing aircraft with a combination of enhanced pass through trust certificates,
lease equity and other third-party financing, subject to availability and market
conditions. As of December 31, 2000, we had approximately $890 million in
financing arranged for such Boeing deliveries. We also have commitments or
letters of intent for backstop financing for approximately 23% of the
anticipated remaining acquisition cost of future Boeing deliveries. In addition,
at December 31, 2000, we had firm commitments to purchase 26 spare engines
related to the new Boeing aircraft for approximately $158 million, which will be
deliverable through March 2005.
As of December 31, 2000, Continental Express had firm commitments for
178 Embraer regional jets with options for an additional 100 Embraer regional
jets exercisable through 2007. Continental Express anticipates taking delivery
of 41 regional jets in 2001. The estimated cost of our firm commitments for
Embraer regional jets is approximately $3 billion. Neither Continental Express
nor we will have any obligation to take any such firm Embraer aircraft that are
not financed by a third party and leased to us.
For 2000, cash expenditures under operating leases relating to aircraft
approximated $864 million, compared to $758 million for 1999, and approximated
$353 million relating to facilities and other rentals compared to $328 million
in 1999. We expect that our operating lease expenses for 2001 will increase over
2000 amounts.
Additional financing will be needed to satisfy our capital commitments.
We cannot predict whether sufficient financing will be available for capital
expenditures not covered by firm financing commitments.
We utilized some of our cash and issued the debentures in order to
finance the purchase in cash of $450 million of shares of Class A common stock
from Northwest after the recapitalization described under "Northwest
Transaction" above. The industry in which we operate is a cash-intensive
business and it is therefore desirable for us to maintain adequate cash on hand.
While we believe that the amount of cash, cash equivalents, short-term
investments and borrowing capacity that remains available to us after the
recapitalization will be sufficient, we cannot provide complete assurance that
this will be the case in all circumstances.
Our Historical Operating Results
We have recorded positive net income in each of the last six years.
However, we experienced significant operating losses in the previous eight
years. Historically, the financial results of the U.S. airline industry have
been cyclical. We cannot predict whether current industry conditions will
continue.
Significant Cost of Aircraft Fuel
Fuel costs constitute a significant portion of our operating expense.
Fuel costs were approximately 15.6% of operating expenses for the year ended
December 31, 2000 and 9.7% for the year ended December 31, 1999 (excluding fleet
disposition/impairment losses). Fuel prices and supplies are influenced
significantly by international political and economic circumstances. We enter
into petroleum swap contracts, petroleum call option contracts and/or jet fuel
purchase commitments to provide some short-term protection (generally three to
six months) against a sharp increase in jet fuel prices. Our fuel hedging
strategy could result in our not fully benefiting from certain fuel price
declines. If a fuel supply shortage were to arise from OPEC production
curtailments, a disruption of oil imports or otherwise, higher fuel prices or
reduction of scheduled airline service could result. Significant changes in fuel
costs or continuation of high current jet fuel prices would materially affect
our operating results.
Labor Costs
Labor costs constitute a significant percentage of our total operating
costs, and we experience competitive pressure to increase wages and benefits. In
July 2000, we completed a three-year program bringing all employees to industry
standard wages and also announced and began to implement a phased plan to bring
employee benefits to industry standard levels by 2003. The plan provides for
increases in vacation, paid holidays, increased 401(k) company matching
contributions and additional past service retirement credit for most senior
employees.
Ability to Use Net Operating Loss Carryforwards
At December 31, 2000, we had estimated net operating loss
carryforwards, or NOLs, of $1 billion for federal income tax purposes that will
expire through 2021 and federal investment tax credit carryforwards of $45
million that will expire through 2001. Due to an ownership change of our company
on April 27, 1993, the ultimate utilization of our NOLs and investment tax
credits may be limited, as described below. Reflecting this limitation, we had a
valuation allowance of $263 million at December 31, 2000.
We had, as of December 31, 2000, deferred tax assets aggregating $677
million, including $366 million related to NOLs. We have consummated several
transactions that resulted in the recognition of NOLs of our predecessor. To the
extent we were to determine in the future that additional NOLs of our
predecessor could be recognized in the accompanying consolidated financial
statements, such benefit would reduce the value ascribed to routes, gates and
slots.
Section 382 of the Internal Revenue Code imposes limitations on a
corporation's ability to utilize NOLs if it experiences an "ownership change."
In general terms, an ownership change may result from transactions increasing
the ownership of certain stockholders in the stock of a corporation by more than
50 percentage points over a three-year period. In the event that an ownership
change occurred, utilization of our NOLs would be subject to an annual
limitation under Section 382 determined by multiplying the value of our stock at
the time of the ownership change by the applicable long-term tax-exempt rate
(which was 5.39% for December 2000). Any unused annual limitation may be carried
over to later years, and the amount of the limitation may under certain
circumstances be increased by the built-in gains in assets held by us at the
time of the change that are recognized in the five-year period after the change.
Under current conditions, if an ownership change were to occur, our annual NOL
utilization would be limited to approximately $174 million per year other than
through the recognition of future built-in gain transactions.
In November 1998, Northwest completed its acquisition of certain
equity of our company previously held by Air Partners, L.P. and its affiliates,
together with certain of our Class A common stock held by other investors,
totaling 8,661,224 shares of the Class A common stock. On January 22, 2001, we
repurchased 6,685,279 shares of our Class A common stock from Northwest and an
affiliate. In addition, each issued share of our Class A common stock was
reclassified into 1.32 shares of Class B common stock in a nontaxable
transaction. We do not believe that these transactions resulted in an ownership
change for purposes of Section 382.
Continental Micronesia's Dependence on the Japanese Economy; Currency
Risk
Because the majority of Continental Micronesia's traffic originates in
Japan, its results of operations are substantially affected by the Japanese
economy and changes in the value of the yen as compared to the dollar. To reduce
the potential negative impact on Continental Micronesia's earnings, we have
entered into forward contracts as a hedge against a portion of our expected net
yen cash flow position. As of December 31, 2000, we had hedged approximately 75%
of 2001 projected yen-denominated net cash flows at a rate of 99 yen to $1 US.
Risk Factors Relating to the Airline Industry
Competition and Industry Conditions
The airline industry is highly competitive and susceptible to price
discounting. Carriers have used discount fares to stimulate traffic during
periods of slack demand, to generate cash flow and to increase market share.
Some of our competitors have substantially greater financial resources or lower
cost structures than we do.
Airline profit levels are highly sensitive to changes in fuel costs,
fare levels and passenger demand. Passenger demand and fare levels have in the
past been influenced by, among other things, the general state of the economy
(both internationally and domestically), international events, airline capacity
and pricing actions taken by carriers. Domestically, from 1990 to 1993, the weak
U.S. economy, turbulent international events and extensive price discounting by
carriers contributed to unprecedented losses for U.S. airlines. In the last
several years, the U.S. economy has improved and excessive price discounting has
abated. We cannot predict the extent to which these industry conditions will
continue.
In recent years, the major U.S. airlines have sought to form marketing
alliances with other U.S. and foreign air carriers. Such alliances generally
provide for "code-sharing," frequent flyer reciprocity, coordinated scheduling
of flights of each alliance member to permit convenient connections and other
joint marketing activities. Such arrangements permit an airline to market
flights operated by other alliance members as its own. This increases the
destinations, connections and frequencies offered by the airline, which provide
an opportunity to increase traffic on its segment of flights connecting with its
alliance partners. The Northwest Alliance is an example of such an arrangement,
and we have existing alliances with numerous other air carriers. Other major
U.S. airlines have alliances or planned alliances more extensive than we do. We
cannot predict the extent to which we will benefit from our alliances or be
disadvantaged by competing alliances.
In recent years, and particularly since our deregulation in 1978, the
U.S. airline industry has also undergone substantial consolidation, and it may
in the future undergo additional consolidation. For example, in May 2000,
United, the nation's largest commercial airline, announced its agreement to
acquire US Airways, the nation's sixth largest commercial airline, subject to
regulatory approvals and other conditions. In addition, in January 2001,
American Airlines announced agreements to acquire the majority of Trans World
Airlines Inc.'s assets and some of US Airways' assets, subject to regulatory
approvals and other conditions. We routinely monitor changes in the competitive
landscape and engage in analysis and discussions regarding our strategic
position, including alliances and business combination transactions. We have
had, and anticipate we will continue to have, discussions with the third parties
regarding strategic alternatives. The impact on us of these pending transactions
and any additional consolidation within the U.S. airline industry cannot be
predicted at this time.
Potential Increased Costs due to Regulatory Compliance
Airlines are subject to extensive regulatory and legal compliance
requirements that engender significant costs. In the last several years, the
Federal Aviation Administration, or FAA, has issued a number of directives and
other regulations relating to the maintenance and operation of aircraft that
have required significant expenditures. Some FAA requirements cover, among other
things, retirement of older aircraft, security measures, collision avoidance
systems, airborne windshear avoidance systems, noise abatement, commuter
aircraft safety and increased inspections and maintenance procedures to be
conducted on older aircraft. We expect to continue incurring expenses in
complying with the FAA's regulations.
Additional laws, regulations, taxes and airport rates and charges have
been proposed from time to time that could significantly increase the cost of
airline operations or reduce revenues. For instance, "passenger bill of rights"
legislation has been introduced in Congress that would, among other things,
require the payment of compensation to passengers as a result of certain delays,
and limit the ability of carriers to prohibit or restrict usage of certain
tickets in manners currently prohibited or restricted. The U.S. Department of
Transportation has proposed rules that would significantly limit major carriers'
ability to compete with new entrant carriers. If adopted, these measures could
have the effect of raising ticket prices, reducing revenue and increasing costs.
Restrictions on the ownership and transfer of airline routes and takeoff and
landing slots have also been proposed. The ability of U.S. carriers to operate
international routes is subject to change because the applicable arrangements
between the United States and foreign governments may be amended from time to
time, or because appropriate slots or facilities are not made available. We
cannot provide assurance that laws or regulations enacted in the future will not
adversely affect us.
Seasonal Nature of Airline Business and Other Variability in Results
Due to greater demand for air travel during the summer months, revenue
in the airline industry in the second and third quarters of the year is
generally stronger than revenue in the first and fourth quarters of the year for
most U.S. air carriers. Our results of operations generally reflect this
seasonality, but have also been impacted by numerous other factors that are not
necessarily seasonal, including the extent and nature of competition from other
airlines, fare wars, excise and similar taxes, changing levels of operations,
fuel prices, weather, air traffic control delays, foreign currency exchange
rates and general economic conditions.
Risk Factors Related to the TIDES
Ability to Make Distributions on the TIDES
Because of the subordinated nature of the guarantee and the debentures,
we:
o are not permitted to make any payments of principal, including
redemption payments, or interest on the debentures if we default
on our senior obligations, as described under "Description of
Debentures--Subordination" in this prospectus,
o are not permitted to make payments on the guarantee if we default
on any of our other liabilities, including senior obligations,
other than liabilities that are equal or subordinate to the
guarantee by their terms as described under "Description of
Guarantee" in this prospectus, and
o must pay all of our senior obligations before we make payments on
the guarantee or the debentures if we become bankrupt, liquidate
or dissolve.
In addition, if we fail to make any payments on the debentures, the
trust will not be able to make any payments on the TIDES.
Neither the TIDES, the guarantee nor the debentures limit our or our
subsidiaries' ability to incur additional indebtedness, including indebtedness
that ranks senior to the debentures and the guarantee. At December 31, 2000, our
senior obligations included approximately $3.7 billion of debt and capital lease
obligations. Our senior obligations also included certain minimum annual
commitments under long-term operating leases of aircraft or aircraft engines.
Limited Scope of the Guarantee
If we fail to make payments on the debentures, the trust will be unable
to make the related distribution, redemption or liquidation payments on the
TIDES to you. In those circumstances, you cannot rely on the guarantee for
payments of those amounts. Instead, if we are in default under the debentures,
you may:
o rely on the property trustee of the trust to enforce the trust's
rights under the debentures or
o directly sue us or seek other remedies to collect your pro rata
share of payments owed.
Tax Consequences of Distribution Deferral Provisions
We can, on one or more occasions, defer interest payments on the
debentures for up to 20 consecutive quarterly periods unless an event of default
under the debentures has occurred and is continuing. We cannot, however, defer
interest payments beyond the maturity date of the debentures, which is November
15, 2030. If we defer interest payments on the debentures, the trust will also
defer distribution payments on the TIDES and the common securities. During a
deferral period, distributions will continue to accumulate on the TIDES and the
common securities. Also, additional distributions will accumulate to the extent
permitted by applicable law on any deferred distributions at an annual rate of
6%, compounded quarterly.
Because of our ability to defer interest payments, special tax rules
will apply that will require you to include interest in income on an accrual
basis, regardless of when such interest is paid to you. Accordingly, if we defer
payments of interest on the debentures, you will be required to include accrued
interest income for the deferred interest allocable to your share of TIDES in
your gross income for U.S. federal income tax purposes prior to receiving any
cash distributions. In addition, you will not receive cash from the trust
related to that income if you sell your TIDES prior to the record date for those
distributions. You should consult with your own tax advisor regarding the tax
consequences of an investment in the TIDES. Please read the "Tax Consequences"
section in this prospectus for more information regarding the tax consequences
of holding and selling the TIDES.
Effect on the Market Price of the TIDES of Deferral of Interest
Payments on the Debentures
If we defer interest payments on the debentures in the future, the
market price of the TIDES may not fully reflect the value of accrued but unpaid
interest on the debentures. If you sell TIDES during a deferral period, you may
not receive the same return on investment as someone who continues to hold
TIDES. In addition, our right to defer interest payments on the debentures may
mean that the market price for the TIDES will be more volatile than other
securities that are not subject to these rights.
Redemption of the Debentures
If specified tax events occur that render interest payments on the
debentures non-deductible or subject the trust to taxation or upon a change in
law that could require the trust to register as an investment company under the
Investment Company Act, as more fully described under "Description of TIDES--Tax
Event or Investment Company Event Redemption or Distribution," we may redeem the
debentures, causing the redemption of your TIDES. The tax redemption price you
would receive if we redeem the debentures will be $50 per each TIDES, plus
accumulated and unpaid distributions. In addition, upon the occurrence of a tax
event, we may elect to pay any increased taxes or expenses of the trust caused
by the tax event.
We may also redeem all or some of the debentures at any time on or
after November 20, 2003, subject to certain conditions, without your consent. If
a redemption occurs, the trust will use the cash it receives from the redemption
of the debentures to redeem an equivalent amount of TIDES and common securities
on a pro rata basis. The redemption price you would receive in that event may
vary, but will be at least 100% of the principal amount of TIDES to be redeemed,
plus any accumulated and unpaid distributions. Please read "Description of
TIDES--Mandatory Redemption" and "Description of Debentures--Redemption" in this
prospectus. You should assume that we will redeem the debentures if we can
refinance the debentures at a lower interest rate or if it is otherwise in our
interest to redeem the debentures.
Disposal of TIDES Between Record Dates for Payments of Distributions
or During Deferral Periods
For tax purposes, if you dispose of your TIDES between record dates for
payments of distributions, or during deferral periods, you will be required to:
o include in your gross ordinary income accrued but unpaid interest
on the debentures through the date of disposition as original
issue discount, and
o add that amount to your adjusted tax basis in your pro rata share
of the underlying debentures that you are deemed to have disposed
of.
Accordingly, you may recognize a capital loss to the extent that the selling
price, which may not fully reflect the value of accrued but unpaid interest, is
less than your adjusted tax basis, which will include accrued but unpaid
interest. In most instances, capital losses cannot be applied to offset ordinary
income for U.S. federal income tax purposes. Accordingly, you may not be able to
offset such accrued but unpaid interest income against any such capital loss.
Absence of a Trading Market for the TIDES
There is no public market for the TIDES. At the time of the original
offering of the TIDES, the initial purchasers of the TIDES, Credit Suisse First
Boston and UBS Warburg LLC, informed us that they intended to make a market for
the TIDES offered hereby, however, the initial purchasers are not obligated to
do so and such market making activity is subject to the limits imposed by
applicable law and may be discontinued at any time without notice. We cannot
assure you that an active trading market for the TIDES will develop or be
sustained. Any market that develops for the TIDES is likely to be influenced by
the market for our common stock. If a market were to develop, the TIDES could
trade at prices that may be higher or lower than their initial public offering
price depending upon many factors, including:
o prevailing interest rates,
o our common stock price,
o our operating results, and
o the market for similar securities.
Voting Rights of TIDES Holders
As a holder of TIDES, you have limited voting rights relating only to
the modification of the TIDES and, in specified circumstances, the exercise of
the trust's rights as holder of the debentures and the guarantee. Except during
an event of default with respect to the debentures, only we can replace or
remove any of the trustees or increase or decrease the number of trustees.
Risk Factors Related to Ownership of Our Common Stock
Anti-Takeover Provisions
We have a rights plan pursuant to which one preferred stock purchase
right is currently associated with each outstanding share of our common stock.
Each of these rights entitles the registered holder to purchase from us one
one-thousandth of a share of our junior preferred stock at a purchase price of
$200 per one one-thousandth of a share, subject to adjustment. The rights have
anti-takeover effects. The rights could cause substantial dilution to a person
or group that attempts to acquire us and effect a change in the composition of
our board of directors on terms not approved by the board of directors,
including by means of a tender offer at a premium to the market price and, as a
result, could delay or prevent a change of control or other transaction that
could provide our stockholders with a premium over the then-prevailing market
price of their shares or which might otherwise be in their best interest. The
rights should not interfere with any merger or business combination approved by
the board of directors. For a detailed description of these preferred stock
purchase rights, see "Description of Capital Stock--Preferred Stock Purchase
Rights."
Our certificate of incorporation and bylaws contain other provisions
that could make it difficult for a third party to acquire us without the consent
of our board of directors.
Pursuant to the Northwest Transaction, we issued to Northwest a new
series of preferred stock with a separate class vote in any required vote of our
stockholders relating to certain changes of control affecting our company, as
described under "Northwest Transaction." This may delay or prevent the
acquisition of our company.
Limitation on Voting by Foreign Owners
Our certificate of incorporation provides that no shares of capital
stock may be voted by or at the direction of persons who are not citizens of the
United States unless the shares are registered on a separate stock record. Our
bylaws further provide that no shares will be registered on this separate stock
record if the amount so registered would exceed applicable foreign ownership
restrictions. U.S. law currently requires that no more than 25% of the voting
stock of our company (or any other domestic airline) may be owned directly or
indirectly by persons who are not citizens of the United States. See
"Description of Capital Stock--Common Stock--Limitation on Voting by Foreign
Owners."
Payment of Dividends on Common Stock
We have not paid cash dividends in the past and do not intend to pay
dividends on our common stock into which the TIDES may be converted in the
foreseeable future. We have no obligation to pay dividends on our common stock
and currently intend to retain any earnings for the future operation and
development of our business. Our ability to make dividend payments in the future
will depend on our future performance and liquidity. In addition, our credit
facility contains restrictions on our ability to pay cash dividends on our
capital stock, including our common stock. As a result, we may not be able to
pay dividends on the common stock into which your TIDES may be converted.
USE OF PROCEEDS
The selling holders will receive all of the net proceeds from the
resale of the TIDES, the debentures, the common stock issuable upon conversion
of the TIDES and the guarantee. Neither we nor the trust will receive any of the
proceeds from the resale of those securities.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratios of our "earnings" to our "combined fixed charges and
preferred stock dividends" for each of the years 1996 through 2000 were:
1996 1997 1998 1999 2000
---- ---- ---- ---- ----
Ratio........ 1.75 2.01 1.90 1.80 1.51
The ratio of earnings to combined fixed charges and preferred stock
dividends are based on continuing operations. For purposes of the ratios,
"earnings" means the sum of:
o our pre-tax income, and
o our fixed charges, net of interest capitalized.
"Combined fixed charges and preferred stock dividends" represent:
o the interest we pay on borrowed funds,
o the amount we amortize for debt discount, premium and issuance
expense and interest previously capitalized,
o that portion of rentals considered to be representative of the
interest factor, and
o preferred stock dividend requirements.
ACCOUNTING TREATMENT OF THE TIDES
The trust is treated as our subsidiary for financial reporting
purposes. Accordingly, the accounts of the trust are included in our
consolidated financial statements. We account for the TIDES in our consolidated
balance sheets as a separate line item entitled "Mandatorily redeemable
preferred securities of subsidiary trust holding solely convertible subordinated
debentures." We also include appropriate disclosures about the TIDES, the
debentures and the guarantee in the notes to our consolidated financial
statements. For financial reporting purposes, we record distributions on the
TIDES as a separate line item entitled "Distributions on Preferred Securities of
Trust" in our consolidated statements of operations.
CONTINENTAL AIRLINES FINANCE TRUST II
Continental Airlines Finance Trust II is a statutory business trust
that was formed under Delaware law on November 6, 2000. The trust was created
under an original declaration of trust among the trust's initial trustees and us
by the filing of a certificate of trust with the Secretary of State of the State
of Delaware. The trust's original declaration of trust was amended and restated
in its entirety as of November 10, 2000, the date the trust initially issued the
TIDES.
We own all of the trust's common securities. The common securities
represent common undivided beneficial interests in the assets of the trust with
an aggregate liquidation amount equal to at least 3% of the total capital of the
trust.
The trust exists for the exclusive purposes of:
o issuing the TIDES,
o issuing the common securities to us,
o investing the gross proceeds of the sale of the TIDES and the
common securities in the debentures,
o distributing payments received on the debentures to holders of
the TIDES and the common securities, and
o engaging in only those other activities necessary or incidental
to such purposes.
The trust currently has four trustees. Two of those trustees, referred
to as administrative trustees, are our employees or officers. Wilmington Trust
Company currently serves as the trust's property trustee and as the trust's
Delaware trustee. In some circumstances, the holders of a majority of the TIDES
are entitled to appoint one additional trustee, referred to as a special
trustee, who does not need to be affiliated with us and who will have the same
rights, powers and privileges as the administrative trustees.
The property trustee, among other things:
o holds title to the debentures for the benefit of the holders of
the TIDES and the common securities,
o has the power to exercise all rights, powers and privileges under
the indenture as the holder of the debentures, and
o maintains exclusive control of a segregated non-interest bearing
bank account, called the property account, to hold all payments
made in respect of the debentures for the benefit of the holders
of the TIDES and the common securities.
Subject to the right of the holders of the TIDES to appoint a special
trustee, we, as holder of all the common securities, have the right to appoint,
remove or replace any of the trustees and to increase or decrease the number of
trustees. However, the number of trustees is required to be at least three, a
majority of which are administrative trustees.
We paid all fees and expenses related to the offering of the TIDES and
will continue to pay all fees and expenses related to the trust.
The address of the principal office of the trust is c/o Continental
Airlines, Inc., 1600 Smith Street, Houston, Texas 77002, and its telephone
number is (713) 324-2950.
DESCRIPTION OF TIDES
The trust issued the TIDES pursuant to the terms of the declaration of
trust. The declaration of trust is qualified under the Trust Indenture Act and
incorporates certain provisions of the Trust Indenture Act. We have summarized
selected provisions of the declaration of trust and the TIDES below. This
summary is not complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of the declaration of trust. The declaration of
trust is filed as an exhibit to this registration statement, of which this
prospectus is a part.
General
The declaration of trust authorized the trust to issue the TIDES and
the common securities. The TIDES represent preferred undivided beneficial
ownership interests in the assets of the trust. The common securities represent
common undivided beneficial ownership interests in the assets of the trust.
Payments on the TIDES are made pro rata with payments on the common securities,
except as described under "--Subordination of Common Securities." Under the
guarantee agreement we guarantee, on a subordinated basis, any payments required
to be made by the trust to the holders of the TIDES, but only to the extent that
the trust has funds on hand available to make the payments. Please read the
"Description of Guarantee" section of this prospectus.
Distributions
You are entitled to receive cash distributions at an annual rate of 6%
of the $50 stated liquidation amount per each TIDES. Distributions are
cumulative and began to accumulate on the date of original issuance of the
TIDES. Distributions are payable quarterly in arrears on February 15, May 15,
August 15 and November 15 of each year, beginning February 15, 2001, to the
person in whose name each of the TIDES is registered, subject to certain
exceptions, at the close of business on the 1st day of the month of the
applicable distribution date.
The amount of distributions payable for any period are computed on the
basis of the number of days elapsed in a 360-day year consisting of 12 30-day
months. If a distribution date is not a business day, the trust will make the
distributions on the next day that is a business day, without any additional
distributions or other payments due to the delay.
Accrued distributions that are not paid on the applicable distribution
date will accrue additional distributions compounded quarterly from the relevant
distribution date. For the purpose of this prospectus, a "distribution" will
include quarterly distributions, additional distributions on quarterly
distributions not paid on the applicable distribution date, special
distributions (as described in the "Registration Rights" section of this
prospectus) and additional sums (as described in the "Description of
Debentures--Additional Sums" section of this prospectus), as applicable. A
"business day" is any day other than a Saturday or a Sunday, or a day on which
banking institutions in New York, New York or Wilmington, Delaware are
authorized or required by law or executive order to remain closed, or a day on
which the corporate trust office of the property trustee or the debenture
trustee is closed for business.
Option to Defer Distributions
We can, on one or more occasions, defer interest payments on the
debentures for up to 20 consecutive quarterly periods unless an event of default
under the indenture has occurred and is continuing. Interest payments are not
due and payable on the debentures during a deferral period. We cannot, however,
defer interest payments beyond the earlier of the maturity date of the
debentures, which is November 15, 2030 or the date the debentures are redeemed.
If we defer interest payments on the debentures, the trust will defer
distribution payments on the TIDES and the common securities. Distributions will
continue to accumulate on the TIDES and the common securities during a deferral
period. Also, additional distributions will accumulate on any deferred
distributions at the annual rate of 6%, compounded quarterly, to the extent
permitted by applicable law.
We do not currently intend to defer interest payments on the
debentures.
We may extend a deferral period prior to the period's termination.
However, we may not extend a deferral period, including all previous and further
extensions of the period, beyond 20 consecutive quarterly interest periods or
the maturity date of the debentures. Once a deferral period ends and we make all
payments due on the debentures, we can commence a new deferral period.
Consequently, there could be multiple deferral periods of varying lengths
throughout the term of the debentures. Please read the "Tax Consequences--U.S.
Holders--Interest Income and Original Issue Discount" section of this
prospectus.
Payment of Distributions
The trust must pay distributions on the TIDES on the distribution
payment dates to the extent that the property trustee has cash on hand to make
distributions. The property trustee will maintain that cash in the property
account. The only funds the property trustee has to distribute to the holders of
the TIDES are from payments received on the debentures. If we do not make
interest payments on the debentures, the property trustee will not have funds
available to make distributions on the TIDES. If and to the extent we make
interest payments on the debentures, the property trustee is obligated to make
distributions on the TIDES and the common securities on a pro rata basis. We
guarantee the payment of distributions and other payments on the TIDES on a
subordinated basis, but only if, and to the extent that, we make corresponding
payments to the trust on the debentures and, as a result, the property trustee
has funds available to make distributions on the TIDES. Please read the
"Description of Guarantee" section in this prospectus.
Conversion Rights
General
Holders of TIDES may convert them into our common stock at any time
before the earlier of:
o the close of business on the business day immediately prior to
the maturity date of the debentures, or
o in the case of TIDES called for redemption, the close of business
on the business day immediately prior to the redemption date.
Initially, each of the TIDES is convertible into shares of our common
stock at an initial conversion price of $60 per share of common stock
(equivalent to an initial conversion rate of approximately 0.8333 shares of
common stock for each of the TIDES). The conversion price and conversion rate
are subject to adjustment as described under the "--Conversion Price
Adjustments" section of this prospectus.
If you wish to exercise your conversion right, you must deliver an
irrevocable conversion notice, together, if the TIDES are in certificated form,
with the certificated security, to the conversion agent who will, on your
behalf, exchange the TIDES for a like amount of debentures and immediately
convert the debentures into shares of our common stock. You may obtain copies of
the required form of the conversion notice from the conversion agent.
At the close of business on a distribution record date, you will be
entitled to receive the distribution payable on your TIDES on the corresponding
distribution date even if you convert your TIDES after the distribution record
date but prior to the distribution date. Except as provided in the immediately
preceding sentence, neither we nor the trust will make, or be required to make,
any payment, allowance or adjustment for accrued and unpaid distributions,
whether or not in arrears, on converted TIDES, even if you convert your TIDES
during a deferral period. We will make no payment or allowance for distributions
on our shares of common stock issued upon conversion, except to the extent that
those shares of common stock are held of record on the record date for any
distributions. We will deem each conversion to have been effected immediately
prior to the close of business on the day on which the trust received the
related conversion notice.
We will not issue any fractional shares of our common stock as a result
of a conversion of TIDES. We will pay cash in lieu of a fractional share of
common stock.
Conversion Price Adjustments--General
The conversion price is subject to adjustment for some events,
including:
o the payment of dividends or distributions payable in our common
stock on our common stock,
o the issuance of rights or warrants to all holders of our common
stock at a price per share less than the then-current market
price,
o subdivisions and combinations of our common stock,
o the payment of dividends or distributions to all holders of our
common stock consisting of our indebtedness, securities or
capital stock, cash or assets, excluding any rights, warrants,
dividends or distributions referred to in the first two bullet
points and dividends and distributions paid exclusively in cash,
o the payment of dividends or other distributions on our common
stock exclusively in cash, excluding:
o cash dividends that do not exceed the per share amount of
the smallest of the four immediately preceding quarterly
cash dividends as adjusted to reflect any of the events
referred to in the preceding bullet points,
o cash dividends, if the annualized per share amount of the
cash dividends does not exceed 15% of the market price of
our common stock on the trading day immediately prior to the
date of declaration of the dividend, and
o payment to holders of our common stock in respect of a
tender or exchange offer, other than an odd-lot offer by us
or any subsidiary of ours, for our common stock at a price
in excess of 110% of the market price of our common stock as
of the trading day next succeeding the last date tenders or
exchanges may be made in the tender or exchange offer.
We may, at our option, make other reductions in the conversion price
that our board of directors determines are advisable to avoid or diminish any
income tax to holders of our common stock resulting from any dividend or
distribution of stock or rights to acquire stock or from any event treated as
such for income tax purposes. Please read the "Tax Consequences--U.S.
Holders--Adjustment of Conversion Price" section of this prospectus.
The conversion price will not be adjusted for the issuance of our
common stock (or securities convertible into or exchangeable for our common
stock), except as described above. For example, the conversion price will not be
adjusted upon the issuance of shares of our common stock
o under any present or future plan providing for the reinvestment
of dividends or interest payable on our securities,
o in connection with the investment of additional optional amounts
in shares of our common stock under any plan described in the
preceding bullet point,
o under any present or future employee benefit plan or program of
ours, or
o pursuant to any option, warrant or right or exercisable,
exchangeable or convertible security outstanding as of the date
the TIDES were first issued.
The conversion price was not adjusted for the recapitalization described under
"Northwest Transaction."
If any action requires adjustment of the conversion price under more
than one of the provisions described above, only one adjustment will be made and
that adjustment will be the amount of adjustment that has the highest absolute
value to holders of the TIDES. An adjustment in the conversion price is not
required unless the adjustment requires a change of at least 1% in the
conversion price then in effect. However, any adjustment otherwise required to
be made will be carried forward and taken into account in any subsequent
adjustment.
Conversion Price Adjustments--Merger, Consolidation or Sale of Assets
If we are a party to any transaction, including a merger (other than a
merger that does not result in a reclassification, conversion, exchange or
cancellation of our common stock), consolidation, sale of all or substantially
all of our assets, recapitalization or reclassification of our common stock
(other than a change in par value, or from par value to no par value, or from no
par value to par value or as a result of a subdivision or combination of our
common stock), or any compulsory share exchange, that results in shares of our
common stock being converted into the right to receive other securities, cash or
other property, then lawful provision will be made as part of the terms of the
transaction so that the holders of the TIDES will have the right to convert each
TIDES into:
o in the case of any transaction other than a transaction involving
a Common Stock Fundamental Change (as defined below) (and subject
to funds being legally available for that purpose under
applicable law at the time of conversion), the kind and amount of
securities, cash or other property receivable upon the
consummation of the transaction by a holder of that number of
shares of our common stock into which a TIDES was convertible
immediately prior to the transaction, or
o in the case of a transaction involving a Common Stock Fundamental
Change, common stock of the kind received by holders of our
common stock as a result of such Common Stock Fundamental Change.
In each case described in the foregoing bullet points, the conversion
will be made after giving effect to any adjustment discussed below relating to a
Fundamental Change (as described below) if the transaction constitutes a
Fundamental Change. The holders of TIDES have no voting rights with respect to
any transaction described in this section.
If a Fundamental Change occurs, the conversion price in effect
immediately before the Fundamental Change will be adjusted as described below.
In the case of a Non-Stock Fundamental Change (as described below), the
conversion price of the TIDES will be adjusted to become the lower of:
o the conversion price in effect immediately prior to the Non-Stock
Fundamental Change, but after giving effect to any other
adjustments that may be made pursuant to the first paragraph
under the "--Conversion Price Adjustments--General" section of
this prospectus, and
o the result obtained by multiplying the greater of the Relevant
Price (as defined below) or the then applicable Reference Market
Price (as defined below) by the Optional Redemption Ratio (as
defined below) (this product is referred to as the "Adjusted
Relevant Price" or the "Adjusted Reference Market Price," as the
case may be).
In the case of a Common Stock Fundamental Change, the conversion price
of the TIDES in effect immediately before the Common Stock Fundamental Change,
but after giving effect to any other prior adjustments, will thereupon be
adjusted by multiplying the conversion price by a fraction of which the
numerator will be the Purchaser Stock Price (as defined below) and the
denominator will be the Relevant Price; provided, however, that in the event of
a Common Stock Fundamental Change in which:
o 100% of the value of the consideration received by a holder of
our common stock is common stock of the successor, acquiror or
other third party (and cash, if any, is paid only with respect to
any fractional interests in that common stock resulting from such
Common Stock Fundamental Change), and
o all of our common stock will have been exchanged for, converted
into, or acquired for common stock (and cash with respect to
fractional interests) of the successor, acquiror or other third
party,
the conversion price of the TIDES in effect immediately before the Common Stock
Fundamental Change will be adjusted by multiplying the conversion price by a
fraction of which the numerator will be one and the denominator will be the
number of shares of common stock of the successor, acquiror, or other third
party received by a holder of one share of our common stock as a result of the
Common Stock Fundamental Change.
In the absence of the adjustments to the conversion price after a
Fundamental Change, in the case of a transaction mentioned above, each TIDES
would become convertible into the securities, cash, or other property receivable
by a holder of the number of shares of our common stock into which each TIDES
was convertible immediately prior to the transaction. As a result, in the
absence of the Fundamental Change provisions, a transaction could substantially
lessen or eliminate the value of the conversion privilege associated with the
TIDES. For example, if we are acquired in a cash merger, each TIDES would become
convertible solely into cash and would no longer be convertible into securities
whose value would vary depending on our future prospects and other factors.
In Non-Stock Fundamental Change transactions, the foregoing conversion
price adjustments are designed to increase the securities, cash or other
property into which each TIDES is convertible. In a Non-Stock Fundamental Change
transaction where the initial value received per share of our common stock
(measured as described in the definition of Relevant Price) is lower than the
conversion price of the TIDES but greater than or equal to the Reference Market
Price, the conversion price will be adjusted as described above with the effect
that each TIDES will be convertible into securities, cash or other property of
the same type received by the holders of our common stock in the transaction
with the conversion price adjusted as though the initial value had been the
Adjusted Relevant Price.
In a Non-Stock Fundamental Change transaction where the initial value
received per share of our common stock (measured as described in the definition
of Relevant Price) is lower than both the conversion price of each TIDES in
effect immediately before any adjustment described above and the Reference
Market Price, the conversion price will be adjusted as described above but
calculated as though the initial value had been the Adjusted Reference Market
Price.
In Common Stock Fundamental Change transactions, the adjustments
described above are designed to provide in effect that:
o where our common stock is converted partly into common stock and
partly into other securities, cash or property, each TIDES will
be convertible solely into a number of shares of common stock
determined so that the initial value of those shares (measured as
described in the definition of Purchaser Stock Price below)
equals the value of the shares of our common stock into which the
TIDES was convertible immediately before the transaction
(measured as described above), and
o where our common stock is converted solely into common stock,
each TIDES will be convertible into the same number of shares of
common stock receivable by a holder of the number of shares of
our common stock into which the TIDES was convertible immediately
before the transaction.
"Closing Price" of any security on any day means the last reported sale
price of that security on that day, or if no sale takes place on that day, the
average of the closing bid and asked prices in each case on the principal
national securities exchange on which the securities are listed or admitted to
trading or, if not listed or admitted to trading on any national securities
exchange, on the National Market System of the Nasdaq Stock Market or any
successor national automated interdealer quotation system (the "Nasdaq Stock
Market") or, if such securities are not listed or admitted to trading on any
national securities exchange or quoted on the Nasdaq Stock Market, the average
of the closing bid and asked prices of that security in the over-the-counter
market as furnished by any New York Stock Exchange member firm selected by us
for that purpose.
"Common Stock Fundamental Change" means any Fundamental Change in which
more than 50% of the value, as determined in good faith by our board of
directors, of the consideration received by holders of our common stock consists
of common stock that for each of the 10 consecutive trading days immediately
prior to and including the Entitlement Date has been admitted for listing or
admitted for listing subject to notice of issuance on a national securities
exchange or quoted on the Nasdaq Stock Market; provided, however, that a
Fundamental Change will not be a Common Stock Fundamental Change unless either:
o we continue to exist after the occurrence of the Fundamental
Change and the outstanding TIDES continue to exist as outstanding
TIDES, or
o not later than the occurrence of such Fundamental Change, the
outstanding debentures are converted into or exchanged for
debentures of a corporation succeeding to the business of our
company, which debentures have terms substantially similar to
those of the debentures.
"Entitlement Date" means the record date for determination of the
holders of our common stock entitled to receive securities, cash or other
property in connection with a Non-Stock Fundamental Change or a Common Stock
Fundamental Change or, if there is no record date, the date on which holders of
our common stock will have the right to receive such securities, cash or other
property.
"Fundamental Change" means the occurrence of any transaction or event
in connection with a plan under which all or substantially all of our common
stock will be exchanged for, converted into, acquired for or constitute solely
the right to receive securities, cash or other property (whether by means of an
exchange offer, liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise); provided that, in the case of
a plan involving more than one of these transactions or events, for purposes of
adjustment of the conversion price, the Fundamental Change will be deemed to
have occurred when substantially all of our common stock will be exchanged for,
converted into, or acquired for or constitute solely the right to receive
securities, cash, or other property, but the adjustment will be based upon the
highest weighted average per share consideration that a holder of our common
stock could have received in that transaction or event as a result of which more
than 50% of our common stock will have been exchanged for, converted into, or
acquired for or constitute solely the right to receive securities, cash or other
property. The Northwest Transaction did not, and our continuing stock buyback
program would not, constitute a Fundamental Change.
"Non-Stock Fundamental Change" means any Fundamental Change other than
a Common Stock Fundamental Change.
"Optional Redemption Ratio" means a fraction of which the numerator is
$50 and the denominator is the then current redemption price or, prior to
November 20, 2003, an amount per TIDES determined by us in our sole discretion,
after consultation with an investment banking firm, to be the equivalent of the
hypothetical redemption price that would have been applicable if the TIDES had
been redeemable during such period.
"Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change, the average of the Closing Prices for the common stock
received in the Common Stock Fundamental Change for the 10 consecutive trading
days prior to and including the Entitlement Date, as adjusted in good faith by
us to appropriately reflect any of the events referred to in the first paragraph
under the "--Conversion Price Adjustments--General" section of this prospectus.
"Reference Market Price" initially means $32.67 (which is an amount
equal to 662/3% of the last reported sale price for our common stock on the New
York Stock Exchange Composite Transactions Tape on November 6, 2000), and, in
the event of any adjustment to the conversion price, other than as a result of a
Non-Stock Fundamental Change, the Reference Market Price will also be adjusted
so that the ratio of the Reference Market Price to the conversion price after
giving effect to the adjustment will always be the same as the ratio of $32.67
to the initial conversion price of the TIDES.
"Relevant Price" means (a) in the case of a Non-Stock Fundamental
Change in which the holder of our common stock receives only cash, the amount of
cash received by the holder of one share of our common stock; and (b) in the
event of any other Non-Stock Fundamental Change or any Common Stock Fundamental
Change, the average of the daily Closing Prices for our common stock during the
10 consecutive trading days prior to and including the Entitlement Date, in each
case as adjusted in good faith by us to appropriately reflect any of the events
referred to in the first paragraph under the "--Conversion Price
Adjustments--General" section of this prospectus.
Mandatory Redemption
When the debentures are repaid in full at their stated maturity or the
debentures are redeemed in whole or in part (other than following any
distribution of the debentures to the holders of the TIDES and common
securities), the proceeds from the repayment or redemption of the debentures
will be applied to redeem, on a pro rata basis, an equivalent liquidation amount
of TIDES and common securities. The redemption price for each TIDES on any such
redemption will be equal to:
o the liquidation amount of each TIDES plus any accrued and unpaid
distributions on the TIDES in the case of (a) the repayment of
the debentures at their stated maturity or (b) the redemption of
the debentures in some limited circumstances upon the occurrence
of a tax event, or
o the redemption price described under the "Description of
Debentures--Redemption--Optional Redemption" section of this
prospectus in the case of an optional redemption of the
debentures on or after November 20, 2003.
Redemption Procedures
If the trust gives a redemption notice for the TIDES, then, by 12:00
noon, New York City time, on the redemption date and provided that we have paid
to the property trustee a sufficient amount of cash for the redemption, and the
TIDES are held in global form, the property trustee will:
o deposit with DTC funds sufficient to pay the applicable
redemption price, and
o give DTC irrevocable instructions and authority to pay the
applicable redemption price to the holders of the TIDES.
For TIDES held in certificated form, the property trustee will:
o deposit with the paying agent for the TIDES funds sufficient to
pay the applicable redemption price, and
o give the paying agent irrevocable instructions and authority to
pay the redemption price to the holders of the TIDES upon
surrender of their certificates evidencing the TIDES.
Distributions payable on or prior to the applicable redemption date
will be payable to the holders of the TIDES on the relevant record dates for the
related distribution dates. If notice of redemption has been given and funds
have been deposited as required, then upon the date of the deposit, all rights
of the holders of the TIDES will cease, except the right of the holders of the
TIDES to receive the applicable redemption price, but without interest on such
redemption price, and the TIDES will cease to be outstanding.
If a date fixed for redemption is not a business day, then payment of
the redemption price payable on that date will be made on the next day that is a
business day, and without any interest or other payment because of the delay.
However, if the next business day falls in the next calendar year, the payment
will be made on the immediately preceding business day. Payment made in either
of these cases will have the same effect as if made on the date fixed for
redemption. If payment of the redemption price is improperly withheld or refused
and not paid either by the property trustee or by us pursuant to the guarantee,
distributions on the TIDES will continue to accrue from the original redemption
date of the TIDES to the date the redemption price is actually paid. In that
case, the actual payment date will be the date fixed for redemption for purposes
of calculating the redemption price and accrued interest.
Subject to applicable law, we or our subsidiaries may at any time
purchase outstanding TIDES by tender, in the open market or by private
agreement.
If we desire to consummate an optional redemption we must send a notice
to each holder of TIDES at its registered address in accordance with the notice
procedures set forth under the "Description of Debentures--Redemption--Optional
Redemption" section of this prospectus. Notice of a redemption due to a tax
event must be mailed at least 20 days but not more than 60 days before the
redemption date to each holder of TIDES. Notice of repayment at the stated
maturity of the debentures is not required.
Tax Event or Investment Company Event Redemption or Distribution
Tax Event
If a tax event occurs, we will cause the trustees to dissolve the trust
and, after satisfaction of liabilities to creditors of the trust as required by
applicable law, distribute the debentures to the holders of the TIDES within 90
days following the occurrence of the tax event. However, such a liquidation and
distribution will be conditioned on:
o the trustees' receipt of an opinion of nationally recognized
independent tax counsel experienced in such matters that the
holders of the TIDES will not recognize any income, gain or loss
for U.S. federal income tax purposes as a result of distribution
of the debentures, and
o our being unable to avoid the tax event within the 90-day period
by taking some ministerial action or pursuing some other
reasonable measure that, in our sole judgment, will have no
adverse effect on the trust, us or the holders of the TIDES and
will involve no material cost.
Furthermore, if a tax event occurs and:
o we receive an opinion of nationally recognized independent tax
counsel experienced in such matters that, as a result of a tax
event, there is more than an insubstantial risk that we would be
precluded from deducting the interest on the debentures for U.S.
federal income tax purposes, even after the debentures were
distributed to the holders of the TIDES upon liquidation of the
trust as described above, or
o the trustees are informed by such tax counsel that it cannot
deliver the opinion contemplated by the immediately preceding
paragraph,
then we will have the right, upon not less than 20 nor more than 60 days' notice
and within 90 days following the occurrence and continuation of the tax event,
to redeem the debentures, in whole, but not in part, for cash, for the principal
amount of the debentures plus accrued and unpaid interest on the debentures and,
following the redemption, all the TIDES will be redeemed by the trust at their
aggregate liquidation amount plus accrued and unpaid distributions on the TIDES.
However, if at the time there is available to us or the trust the opportunity to
eliminate, within a 90-day period, the tax event by taking some ministerial
action or pursuing some other reasonable measure that, in our sole judgment,
will have no adverse effect on us, the trust or the holders of the TIDES and
will involve no material cost, either we or the trust will pursue such measure
in lieu of redemption. In lieu of the foregoing options, we will also have the
option of causing the TIDES to remain outstanding and pay additional sums on the
debentures as described below in the "Description of Debentures--Additional
Sums" section of this prospectus.
A tax event will occur upon the receipt by the property trustee of an
opinion of a nationally recognized independent tax counsel experienced in such
matters to the effect that, on or after the date of original issuance of the
TIDES, as a result of:
o any amendment to or change, including any announced prospective
change (provided that a tax event will not occur more than 90
days before the effective date of any such prospective change),
in the laws of the U.S. or any political subdivision or taxing
authority thereof or therein,
o any judicial decision or official administrative pronouncement,
ruling, regulatory procedure, notice or announcement, including
any notice or announcement of intent to adopt such procedures or
regulations, or
o any amendment to or change in the administrative position or
interpretation of any judicial decision or official
administrative pronouncement, ruling, regulatory procedure,
notice or announcement, or judicial decision that differs from
the previously generally accepted position, in each case, by any
legislative body, court, governmental agency or regulatory body,
irrespective of the manner in which such amendment or change is
made known, which amendment or change is effective or such
amendment or change is announced,
there is more than an insubstantial risk that:
o if the debentures are held by the property trustee, (a) the trust
is, or will be within 90 days of the date of the opinion, subject
to U.S. federal income tax with respect to interest accrued or
received on the debentures or subject to more than a de minimis
amount of other taxes, duties or other governmental charges or
(b) any portion of interest payable by us to the trust on the
debentures is not, or within 90 days of the date of the opinion
will not be, deductible by us in whole or in part for U.S.
federal income tax purposes, or
o with respect to debentures that are no longer held by the
property trustee, any portion of interest payable by us on the
debentures is not, or within 90 days of the date of the opinion
will not be, deductible by us in whole or in part for U.S.
federal income tax purposes.
Investment Company Event
If an investment company event occurs and is continuing, we will cause
the trustees to dissolve the trust and, after satisfaction of liabilities to
creditors of the trust as required by applicable law, cause the debentures to be
distributed to the holders of the TIDES in liquidation of the trust within 90
days following the occurrence of the investment company event.
An investment company event will occur upon the receipt by the property
trustee of an opinion of nationally recognized independent securities counsel to
the effect that on or after the date of original issuance of the TIDES, as a
result of a change in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, the trust is or will be considered an investment
company that is required to be registered under the Investment Company Act of
1940.
The distribution by us of the debentures will effectively result in the
cancellation of the TIDES.
Liquidation of the Trust and Distribution of the Debentures
We have the right at any time to dissolve the trust and, after
satisfaction of liabilities to creditors of the trust as required by applicable
law, cause an equivalent principal amount of the debentures to be distributed to
the holders of the TIDES in liquidation of the trust.
In addition, the trust will automatically dissolve upon the first to
occur of:
o specified events of bankruptcy, dissolution or liquidation of
Continental,
o our election to distribute all of the debentures to the holders
of the TIDES and the common securities in exchange for all of the
TIDES and common securities in accordance with the terms of the
TIDES and common securities,
o redemption of all the TIDES and common securities as described
under "--Mandatory Redemption" above,
o conversion of all outstanding TIDES and the trust's common
securities as described under "--Conversion Rights" above,
o November 15, 2050, the expiration of the trust's term, and
o a decree of judicial dissolution of the trust.
If an early dissolution occurs as described in the first, second or
sixth bullet points above, the trustees will liquidate the trust as
expeditiously as possible by distributing, after satisfaction of liabilities to
the trust's creditors as required by applicable law, to the holders of the TIDES
and common securities an equivalent principal amount of debentures. However, if
the distribution of debentures is not practical, the holders of TIDES will be
entitled to receive out of the assets of the trust available for distribution to
holders of TIDES, an amount equal to the aggregate liquidation amount of the
TIDES plus accrued and unpaid distributions of the TIDES to the date of payment.
If this amount can be paid only in part because the trust has insufficient
assets available to pay the full amount, then the amounts payable directly by
the trust on the TIDES will be paid on a pro rata basis. We, as holder of the
common securities, will be entitled to receive distributions upon any such
liquidation pro rata with the holders of the TIDES. However, if an event of
default under the indenture or declaration of trust has occurred and is
continuing, the TIDES will have a priority over the common securities with
respect to any distributions.
On and after the liquidation date fixed for any distribution of
debentures to holders of the TIDES and common securities:
o the TIDES will no longer be deemed to be outstanding,
o DTC or its nominee, as the record holder of the TIDES, will
receive a registered global certificate or certificates
representing the debentures to be delivered upon such
distribution with respect to TIDES held by DTC or its nominee,
and
o any certificates representing TIDES not held by DTC or its
nominee will be deemed to represent debentures having a principal
amount equal to the liquidation amount of such TIDES and bearing
accrued and unpaid interest in an amount equal to the accumulated
and unpaid distributions on such TIDES until certificates are
presented to the administrative trustees or their agent for
cancellation, whereupon we will issue to such holder, and the
debenture trustee will authenticate, a certificate representing
the debentures.
Subordination of Common Securities
Payment on the TIDES will be made pro rata with payments on the common
securities based on the liquidation amount of the securities. However, if on a
distribution date or redemption date, as the case may be, an event of default
under the indenture or declaration of trust has occurred and is continuing, no
payment may be made on the common securities.
In the case of any event of default under the declaration of trust
resulting from an event of default under the indenture, we, as holder of the
common securities, will be deemed to have waived any right to act with respect
to any such event of default under the declaration of trust until the effect of
all such events of default have been cured, waived or otherwise eliminated.
Until all of the events of default under the declaration of trust have been
cured, waived or otherwise eliminated, the property trustee will act solely on
behalf of the holders of the TIDES and not on our behalf, and only the holders
of the TIDES will have the right to direct the property trustee to act on their
behalf.
Events of Default; Notice
Any one of the following events constitutes an event of default under
the declaration of trust:
o the occurrence of an event of default under the indenture,
o default by the trust in the payment of any distribution when it
becomes due and payable, and continuation of such default for a
period of 30 days (subject to the deferral of any due date in the
case of a deferral period),
o default by the trust in the payment of any redemption price of
any TIDES when it becomes due and payable,
o default in the performance, or breach, in any material respect,
of any other covenant or warranty of the trustees in the
declaration of trust, and continuation of such default or breach
for a period of 60 days after there has been given written notice
of the breach by the holders of at least 25% in aggregate
liquidation amount of the outstanding TIDES, or
o the occurrence of certain events of bankruptcy or insolvency with
respect to the property trustee and our failure to appoint a
successor property trustee within 60 days thereof.
We and the administrative trustees are required to file annually with
the property trustee a certificate as to whether or not we are in compliance
with all the conditions and covenants applicable to us under the declaration of
trust.
Removal of Trustees
Unless an event of default under the indenture occurs and is
continuing, we may remove any trustee at any time. If an event of default under
the indenture has occurred and is continuing, the property trustee and the
Delaware trustee may be removed at that time only by the holders of a majority
in liquidation amount of the outstanding TIDES. The holders of the TIDES do not
have the right to appoint, remove or replace the administrative trustees. We
have the exclusive right, as the holder of the common securities, to appoint,
remove or replace the administrative trustees. A resignation or removal of the
Delaware trustee or the property trustee and an appointment of a successor
trustee will not be effective until the acceptance of appointment by the
successor trustee in accordance with the provisions of the declaration of trust.
Co-trustees and Separate Property Trustee
Unless an event of default under the indenture has occurred and is
continuing, at any time, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the trust's
property may at the time be located, we, as the holder of the common securities,
and the administrative trustees may appoint one or more persons either to act as
a co-trustee, jointly with the property trustee, of all or any part of the
trust's property, or to act as separate trustee of any of the trust's property.
If an event of default under the indenture has occurred and is continuing, the
property trustee alone will have the power to make the appointment.
Mergers, Consolidations, Amalgamations or Replacements of the Trust
The trust may not merge with or into, consolidate, amalgamate or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other person, except as
described below or as otherwise set forth in the declaration of trust. The trust
may, with the consent of the administrative trustees and without the consent of
the holders of the TIDES, the property trustee or the Delaware trustee, merge
with or into, consolidate, amalgamate or be replaced by, or convey, transfer or
lease its properties and assets substantially as an entirety to, a trust
organized under the laws of any state of the United States or the District of
Columbia if:
o if the trust is not the surviving entity, the successor entity
either (a) expressly assumes all of the obligations of the trust
with respect to the TIDES or (b) substitutes for the TIDES other
securities having substantially the same terms as the TIDES so
long as the successor securities rank the same as the TIDES,
o a trustee of the successor entity possessing the same powers and
duties as the property trustee as the holder of the debentures is
appointed,
o the TIDES or any successor securities are listed, or any
successor securities will be listed upon notification of
issuance, on any national securities exchange or other
organization on which the TIDES are then listed or quoted, if
any,
o the transaction does not cause the TIDES (including any successor
securities) to be downgraded by any nationally recognized
statistical rating agency then rating the TIDES,
o the transaction does not adversely affect the rights, preferences
and privileges of the holders of the TIDES (including any
successor securities) in any material respect,
o the successor entity has a purpose substantially identical to
that of the trust,
o prior to the transaction, we receive an opinion from independent
counsel experienced in such matters to the effect that (a) the
successor entity will be treated as a grantor trust for U.S.
federal income tax purposes, (b) following the transaction,
neither the trust nor the successor entity will be required to
register as an investment company under the 1940 Act, and (c) the
transaction will not adversely affect the limited liability of
the holders of the trust securities (including any successor
securities),
o we or any permitted successor or assignee will own all of the
common securities of the successor entity and will guarantee the
obligations of the successor entity under the successor
securities at least to the extent provided by the guarantee, and
o the transaction is not a taxable event for holders of the TIDES.
Notwithstanding the foregoing, the trust will not, except with the
consent of holders of 100% in liquidation amount of the TIDES and common
securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to, any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it, if the transaction would cause the trust or
the successor entity to be classified as an association taxable as a
corporation, or substantially increase the likelihood that the trust or the
successor entity would not be classified as a grantor trust for U.S. federal
income tax purposes.
Voting Rights; Amendment of the Declaration
Except as provided below and under the "Description of
Guarantee--Amendments and Assignment" section of this prospectus and as
otherwise required by law and the declaration of trust, the holders of the TIDES
have no voting rights.
In addition to the rights of the holders of TIDES to enforce payment to
the trust of the principal or interest on the debentures described in the
"Description of Debentures--Enforcement of Certain Rights by Holders of TIDES"
section of this prospectus, if an event of default under the indenture occurs
and is continuing or we default under the guarantee with respect to the TIDES,
then the holders of the TIDES will be entitled by the majority vote of the
holders to appoint a special trustee. Any holder of TIDES other than us and our
affiliates will be entitled to nominate a special trustee. Not later than 30
days after the right to appoint a special trustee arises, the trustees will
convene a meeting of the holders of the TIDES for the purpose of appointing a
special trustee. If the trustees fail to convene the meeting within the 30-day
period, the holders of not less than 10% of the aggregate liquidation amount of
the outstanding TIDES will be entitled to convene the meeting. Any appointed
special trustee will cease to be a special trustee if the event that caused the
appointment is cured. Regardless of the appointment of a special trustee, we
will retain all rights under the indenture.
We, the property trustee and the administrative trustees may amend the
declaration of trust without the consent of the holders of the TIDES:
o to cure any ambiguity, correct or supplement any provision in the
declaration of trust that may be inconsistent with any other
provision of the declaration of trust, or to make provisions with
respect to ministerial matters or questions arising under the
declaration of trust, which are not inconsistent with the other
provisions of the declaration of trust, or
o to modify, eliminate or add to any provisions of the declaration
of trust to the extent as is necessary to ensure that (a) the
trust will not be taxable as a corporation and will continue to
be classified for U.S. federal income tax purposes as a grantor
trust at all times that any TIDES or common securities are
outstanding or (b) the trust will not be required to register as
an "investment company" under the 1940 Act.
However, in the case described in the first bullet point above, the
action must not adversely affect in any material respect the interests of any
holder of TIDES.
For amendments not described above, we and the trustees may only amend
the declaration of trust if:
o we obtain the consent of holders representing not less than a
majority of the aggregate liquidation amount of TIDES
outstanding, and
o the trustees receive an opinion of counsel that the amendment
will not affect the trust's status as a grantor trust for U.S.
federal income tax purposes or the trust's exemption from being
an "investment company" under the 1940 Act.
In addition, the declaration of trust may not be amended without the
consent of each holder of TIDES to:
o change or adversely affect the amount or timing of any
distribution on the TIDES, or
o restrict the right of a holder of TIDES to sue to enforce the
payment of a distribution.
So long as any debentures are held by the trust, the trustees will not:
o direct the time, method and place of conducting any proceeding
for any remedy available to the debenture trustee, or executing
any trust or power conferred on the property trustee with respect
to the debentures,
o waive any past default that is waivable under the indenture,
o exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the debentures,
or
o consent to any amendment, modification or termination of the
indenture or the debentures, where the consent is required,
without, in each case, obtaining the prior approval of the holders of a majority
in aggregate liquidation amount of all outstanding TIDES.
However, where a consent under the indenture would require the consent
of each holder of debentures affected by the consent, the property trustee may
not give such consent without the prior consent of each holder of the TIDES. The
trustees will not revoke any action previously authorized or approved by a vote
of the holders of the TIDES except by subsequent vote of the holders. The
property trustee will notify each holder of TIDES of any notice of default with
respect to the debentures. In addition to obtaining the foregoing approvals of
the holders of the TIDES, prior to taking any of the foregoing actions, the
trustees will obtain an opinion of counsel experienced in these matters that the
action will not affect the trust's status as a grantor trust for U.S. federal
income tax purposes on account of the action.
Any required approval of holders of TIDES may be given at a meeting of
the holders of TIDES convened for that purpose or by a written consent. Notice
of any meeting at which holders of TIDES are entitled to vote will be given to
each holder of record of TIDES in the manner set forth in the declaration of
trust.
No vote or consent of the holders of TIDES is required for the trust to
redeem and cancel the TIDES in accordance with the declaration of trust.
Even though holders of the TIDES may be entitled to vote or consent
under any of the circumstances described above, any of the TIDES that are owned
by Continental, the trustees or any affiliate of Continental or any trustee,
will, for purposes of any vote or consent, be treated as if they were not
outstanding.
Expenses and Taxes
In the indenture, we have agreed to pay all present and future costs,
expenses, debts and other obligations, including taxes, other than withholding
taxes, of the trust. However, these costs, expenses, debts and obligations do
not include payment obligations of the trust to the holders of the TIDES.
Form, Book-Entry Procedures and Transfer
TIDES sold to "qualified institutional buyers" as defined in Rule 144A
under the Securities Act were issued in the form of a fully registered global
certificate. The global certificate was deposited on the date of original
issuance of the TIDES with DTC and registered in the name of Cede & Co., as
nominee of DTC. Except as set forth below, the global certificate may be
transferred, in whole and not in part, only to DTC or another nominee of DTC.
Investors may hold their beneficial interests in the global certificate directly
through DTC if they have an account with DTC or indirectly through organizations
that have accounts with DTC.
DTC has advised us as follows: DTC is a limited-purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code, and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities of institutions that have accounts with DTC, known as participants,
and to facilitate the clearance and settlement of securities transactions among
its participants in such securities through electronic book-entry changes in
accounts of the participants, thereby eliminating the need for physical movement
of securities certificates. DTC's participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. Access to DTC's book-entry system is also available to others
such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a participant, whether directly or
indirectly.
Upon the issuance of the global certificate, DTC credited, on its
book-entry registration and transfer system, the principal amount of the global
certificate to the accounts of participants. The accounts credited were
designated by the initial purchasers. Ownership of beneficial interests in the
global certificate will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests in the global
certificate will be shown on, and the transfer of those ownership interests will
be effected only through, records maintained by DTC and its participants. The
laws of some jurisdictions may require that certain purchasers of securities
take physical delivery of securities in definitive form. These limits and laws
may impair a person's ability to transfer or pledge beneficial interests in the
global certificate.
So long as DTC or its nominee is the registered holder and owner of the
global certificate, DTC or its nominee, as the case may be, will be considered
the sole legal owner and holder of the TIDES represented by the certificate for
all purposes of the declaration of trust, the guarantee and the indenture.
Except as described below, owners of beneficial interests in the global
certificate will not be entitled to have the TIDES represented by the global
certificate registered in their names, will not receive or be entitled to
receive physical delivery of certificated TIDES in definitive form and will not
be considered to be the owners or holders of any TIDES under the declaration of
trust, the guarantee or the indenture. We understand that under existing
industry practice, in the event an owner of a beneficial interest in the global
certificate desires to take any action that DTC, as the holder of the global
certificate, is entitled to take, DTC would authorize the participants to take
such action, and that the participants would authorize beneficial owners owning
through such participants to take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Payment of amounts with respect to the TIDES represented by the global
certificate registered in the name of and held by DTC or its nominee will be
made to DTC or its nominee, as the case may be, as the registered owner and
holder of the global certificate.
We expect that DTC or its nominee, upon receipt of payment of amounts
with respect to the global certificate, will credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the liquidation amount of the global certificate as shown on the records of DTC
or its nominee. We also expect that payments by participants to owners of
beneficial interests in the global certificate held through such participants
will be governed by standing instructions and customary practices and will be
the responsibility of such participants. Neither the trust nor we have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests in the global
certificate or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests or for any other aspect of the relationship
between participants or the relationship between such participants and the
owners of beneficial interests in DTC and its participants or the relationship
between such participants and the owners of beneficial interests in the global
certificate owning through such participants.
Unless and to the extent they are exchanged in whole or in part for
certificated TIDES in definitive form, the global certificate may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC.
Although DTC has agreed to the foregoing procedures in order to
facilitate transfers of interests in the global certificate among participants
of DTC, it is under no obligation to perform or continue to perform such
procedures, and such procedures may be discontinued at any time.
Neither the trust nor we will be liable for any delay by DTC or any
participant or indirect participant in identifying the beneficial owners of the
TIDES, and we and the trust may conclusively rely on, and will be protected in
relying on, instructions from DTC for all purposes (including with respect to
the registration and delivery, and their respective liquidation amounts, of the
TIDES to be issued).
The information in this prospectus concerning DTC and DTC's book-entry
system has been obtained from sources that we believe to be reliable. Neither
the trust nor we will have any responsibility for the performance by DTC or its
participants of their respective obligations as described in this prospectus or
under the rules and procedures governing their respective operations.
Certificated TIDES
The TIDES represented by the global certificate are exchangeable for
certificated TIDES in definitive form only if:
o DTC notifies us or the trust that it is unwilling or unable to
continue as depositary for the global certificate or if at any
time DTC ceases to be a clearing agency registered under the
Exchange Act,
o we, or the trust, in our discretion at any time determine not to
have all of the TIDES evidenced by the global certificate, or
o a default entitling the holders of the TIDES to accelerate the
maturity of the TIDES has occurred and is continuing.
Payments and Paying Agency
Payments in respect of the global certificate will be made to DTC. DTC
will credit the relevant accounts at DTC on the applicable distribution dates.
For any TIDES that are not held by DTC, payment will be made by check mailed to
the address of the holder entitled to payment as the address appears on the
register. The paying agent is currently the property trustee. The paying agent
will be permitted to resign upon 30 days' written notice to the property
trustee, the administrative trustees and us. In the event that the property
trustee is no longer willing to be the paying agent, the administrative trustees
will appoint a successor, which will be a bank or trust company acceptable to
the administrative trustees and to us, to act as paying agent.
The property trustee has informed the trust that so long as it serves
as paying agent for the TIDES, it anticipates that information regarding
distributions on the TIDES, including payment date, record date and redemption
information, will be made available through Wilmington Trust Company.
Registrar, Conversion Agent and Transfer Agent
The property trustee acts as registrar and conversion agent for the
TIDES. The property trustee acts as initial transfer agent for certificated
TIDES and may designate additional or substitute transfer agents at any time.
Registration of transfers of certificated TIDES will be effected without charge
by or on behalf of the trust upon payment of any tax or other government charges
that may be imposed in relation to the transfer. The trust is not required to
register the transfer of or exchange certificated TIDES during the period
beginning at the opening of business 15 days before any selection of
certificated TIDES to be redeemed and ending at the close of business on the day
of that selection or any certificated TIDES called for redemption.
Information Concerning the Property Trustee
The property trustee, other than during the occurrence and continuance
of an event of default, undertakes to perform only the duties that are
specifically described in the declaration of trust. During the existence of an
event of default under the declaration of trust, the property trustee must
exercise the same degree of care and skill as a prudent person would exercise or
use in the conduct of his or her own affairs. Subject to this provision, the
property trustee is under no obligation to exercise any of the powers vested in
it by the declaration of trust at the request of any holder of TIDES unless it
is offered reasonable indemnity against any costs, expenses and liabilities that
might be incurred by the property trustee. If no event of default has occurred
and is continuing and the property trustee is required to decide between
alternative causes of action, construe ambiguous provisions in the declaration
of trust or is unsure of the application of any provision of the declaration of
trust, and the matter is not one on which holders of the TIDES or the common
securities are entitled under the declaration of trust to vote, then the
property trustee will take such action as is directed by us. If we do not direct
the property trustee to take action, the property trustee will take the action
that it deems advisable and in the best interests of the holders of the TIDES
and common securities and will have no liability except for its own bad faith,
negligence or willful misconduct.
Miscellaneous
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the trust in such a way that:
o the trust will not be deemed to be an "investment company"
required to be registered under the 1940 Act,
o the trust will not be classified as an association taxable as a
corporation for U.S. federal income tax purposes or in a way that
would substantially increase the risk that the trust would be
classified as other than a grantor trust for U.S. federal income
tax purposes, and
o the debentures will be treated as our indebtedness for U.S.
federal income tax purposes.
In this connection, we and the administrative trustees are authorized
to take any action, not inconsistent with applicable law, the certificate of
trust or the declaration of trust, that we and the administrative trustees
determine in our discretion to be necessary or desirable for these purposes, as
long as the action does not materially adversely affect the interests of the
holders of the TIDES and common securities. Holders of the TIDES and common
securities have no preemptive or similar rights. The trust may not borrow money
or issue debt or mortgage or pledge any of its assets.
Governing Law
The declaration of trust and the TIDES are governed by and construed in
accordance with the laws of the State of Delaware.
DESCRIPTION OF DEBENTURES
We issued the debentures under an indenture between us and Wilmington
Trust Company, as trustee. The indenture is qualified under the Trust Indenture
Act and incorporates certain provisions of the Trust Indenture Act. We have
summarized selected provisions of the indenture and the debentures. This summary
is not complete, and is subject to and is qualified in its entirety by reference
to all of the provisions of the indenture. The form of indenture is filed as an
exhibit to the registration statement of which this prospectus is a part.
General
Concurrently with the issuance of the TIDES and common securities, the
trust invested the proceeds in debentures issued by us. The debentures bear
interest at the rate of 6% per annum from November 10, 2000. Interest is payable
quarterly in arrears on February 15, May 15, August 15 and November 15 of each
year, beginning February 15, 2001, to the person in whose name each debenture is
registered, subject to certain exceptions, at the close of business on the first
day of the month of the applicable interest payment date. It is anticipated
that, until the liquidation of the trust, each debenture will be registered in
the name of the trust and held by the property trustee for the benefit of the
holders of the TIDES and common securities.
The amount of interest payable for any period is computed on the basis
of the number of days elapsed in a 360-day year consisting of 12 30-day months.
If an interest payment date is not a business day, then we will make the payment
of the interest on the next day that is a business day, without any additional
interest or other payment due to the delay.
Accrued interest that is not paid on the applicable interest payment
date will bear additional interest compounded quarterly from the relevant
interest payment date. The term "interest" as used in this prospectus includes
quarterly interest payments, interest on quarterly interest payments not paid on
the applicable interest payment date, special interest (as described in the
"Registration Rights" section of this prospectus) and additional sums (as
described in "--Additional Sums"), as applicable.
Unless previously redeemed or repurchased in accordance with the
indenture, the debentures will mature on November 15, 2030.
The debentures are unsecured and rank junior and are subordinate in
right of payment to all of our senior obligations and effectively subordinated
to all existing and future liabilities of our subsidiaries. The indenture does
not limit the incurrence or issuance of other secured or unsecured debt by us or
any of our subsidiaries, including senior obligations.
Option to Extend Interest Payment Date
We can, on one or more occasions, defer interest payments on the
debentures for up to 20 consecutive quarterly periods unless an event of default
under the indenture has occurred and is continuing. Thus, we will not be
obligated to pay interest on the debentures during a deferral period. We do not
currently intend to defer interest payments on the debentures.
We may extend a deferral period prior to the period's termination.
However, we may not extend a deferral period, including all previous and further
extensions of the period, beyond 20 consecutive quarterly interest periods or
the maturity date of the debentures. On the interest payment date occurring at
the end of each deferral period, we will pay to the holders of debentures all
accrued and unpaid interest on the debentures, together with interest on that
interest at the stated annual rate, compounded quarterly, to the extent
permitted by applicable law. Once we make all interest payments due on the
debentures, we can commence a new deferral period, subject to the same
limitations. Consequently, there could be multiple deferral periods of varying
lengths throughout the term of the debentures. During a deferral period,
interest will continue to accrue and holders of the debentures (and holders of
the TIDES while the TIDES are outstanding) will be required to recognize
interest income for U.S. federal income tax purposes. Please read the "Tax
Consequences--U.S. Holders--Interest Income and Original Issue Discount" section
of this prospectus.
We will be subject to restrictions during a deferral period on our
ability to pay dividends on our capital stock or to make payments on other debt
securities that are on a parity with or junior to the debentures. Please read
the "--Restrictions on Payments" section of this prospectus.
We must give the property trustee, the administrative trustees and the
debenture trustee notice of our election to begin a deferral period at least ten
days before the record date for the distributions on the TIDES that would have
been payable except for the election to begin or extend the deferral period. The
property trustee will give notice of our election to begin or extend a new
deferral period to the holders of the TIDES.
Redemption
Repayment at Maturity, Redemption of Debentures
The debentures must be repaid at their stated maturity, unless earlier
redeemed. The circumstances in which we may redeem the debentures prior to their
stated maturity are described below. Upon the repayment in full at maturity or
redemption (other than following the distribution of the debentures to the
holders of the TIDES and common securities), the trust will apply the proceeds
from the repayment or redemption to redeem, at the applicable redemption price,
an equivalent liquidation amount of TIDES and common securities.
Optional Redemption
We have the right to redeem the debentures in whole or in part, at any
time on or after November 20, 2003, upon not less than 20 nor more than 60 days'
notice, at a redemption price equal to the following prices per $50 principal
amount of debentures, plus accrued and unpaid interest thereon, if redeemed
during the 12-month period ending November 19:
Price Per $50
Year Principal Amount
---- ----------------
2004............................ $51.50
2005............................ $51.00
2006............................ $50.50
2007 and thereafter............. $50.00
In the event of any rnot be required:
o to issue, register the transfer of or exchange any debenture
during a period beginning at the opening of business 15 days
before any selection of debentures for redemption and ending at
the close of business on the earliest date on which the notice of
redemption is deemed to have been given to all holders of
debentures to be redeemed, and
o to register the transfer of or exchange any debentures selected
for redemption, in whole or in part, except the unredeemed
portion of any debenture being redeemed in part.
In no event will we optionally redeem the debentures during a deferral
period. Accordingly, prior to optionally redeeming the debentures, all interest
accrued and unpaid (together, in the case of a deferral period, with interest
thereon, to the extent permitted by law) to the interest payment date
immediately preceding the optional redemption date will be paid in full.
Tax Event Redemption
We may also, under limited circumstances within 90 days of the
occurrence and continuation of a tax event, redeem the debentures in whole, but
not in part, at the aggregate principal amount of the debentures plus accrued
and unpaid interest on the debentures to the date of redemption. Please read the
"Description of TIDES--Tax Event or Investment Company Event Redemption or
Distribution" section of this prospectus.
If we are permitted to consummate the tax event redemption described
above and desire to do so, we must mail notice to holders of TIDES at least 20
days but not more than 60 days before the redemption date.
Additional Sums
If the property trustee is the sole holder of all debentures and the
trust is required to pay any additional taxes, duties, assessments or other
governmental charges as a result of a tax event or otherwise, we will pay as
additional amounts on the debentures, referred to in this prospectus as
"additional sums," such amounts as are required so that the distributions
payable by the trust to holders of TIDES and common securities will not be
reduced as a result of the additional taxes, duties, assessments or other
governmental changes.
Restrictions on Payments
If any of the following occur:
o an event of default under the indenture,
o we are in default in our payment obligations under the guarantee,
or
o we have given notice of our election of a deferral period as
provided in the indenture and have not rescinded the notice, or a
deferral period is continuing,
then, we covenant that we will not:
o declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to,
any of our capital stock other than stock dividends paid by us
which consist of stock of the same class as that on which the
dividend is being paid,
o make any payment of principal, interest or premium, if any, on or
repay or repurchase or redeem any of our debt securities that
rank pari passu with or junior in interest to the debentures, or
o make any guarantee payments with respect to any guarantee by us
of the debt securities of any of our subsidiaries if the
guarantee ranks pari passu with or junior in interest to the
debentures.
However, we may:
o declare or pay dividends or distributions in our common stock,
o declare a dividend in connection with the implementation of a
stockholders' rights plan, or issue stock under the plan in the
future, or redeem or repurchase the rights pursuant to the plan,
o make payments under the guarantee,
o purchase shares of our common stock in connection with the
satisfaction by us of our obligations under any employee benefit
plan or any other of our contractual obligations so long as they
do not rank pari passu with or junior in interest to the
debentures,
o do any of the foregoing if it is a result of a reclassification
of our capital stock or the exchange or conversion of one class
or series of our capital stock for another class or series of our
capital stock, or
o purchase fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of that capital
stock or the security being converted or exchanged.
Modification of Indenture
From time to time we and the debenture trustee may, without the consent
of the holders of debentures, amend, waive or supplement the indenture for
specified purposes, including, among other things:
o curing ambiguities, defects or inconsistencies (provided that any
such action does not materially adversely affect the interest of
the holders of debentures or the holders of the TIDES so long as
they remain outstanding), and
o qualifying, or maintaining the qualification of, the indenture
under the Trust Indenture Act.
In addition, we and the debenture trustee, with the consent of the
holders of not less than a majority in principal amount of the outstanding
debentures, can modify the indenture in a manner affecting the rights of the
holders of debentures. However, without the consent of the holder of each
affected debenture, we may not:
o change the stated maturity of the debentures,
o reduce the principal amount of the debentures,
o reduce the rate or extend the time of payment of interest on the
debentures, or
o reduce the percentage of principal amount of debentures the
consent of whose holders is required to amend, waive or
supplement the indenture, or have certain other effects as set
forth in the indenture.
Notwithstanding the provisions described above or in the "--Events of
Default" section of this prospectus, so long as any of the TIDES remain
outstanding, (a) no modification may be made that adversely affects the holders
of the TIDES in any material respect, and no termination of the indenture may
occur, and no waiver of any event of default under the indenture or compliance
with any covenant under the indenture may be effective, without the prior
consent of the holders of at least a majority in aggregate liquidation
preference of TIDES then outstanding unless and until the principal of and any
premium on the debentures and all accrued and unpaid interest thereon has been
paid in full, and (b) where a consent under the indenture would require the
consent of each holder of debentures, no consent will be given by the property
trustee without the prior consent of each holder of the TIDES.
Events of Default
The indenture provides that any one or more of the following described
events with respect to the debentures that has occurred and is continuing
constitutes an event of default under the indenture:
o failure for 30 days to pay any interest on the debentures when
due (subject to the deferral of any due date in the case of a
deferral period),
o failure to pay any principal or premium, if any, on the
debentures when due, whether at maturity, upon redemption, by
declaration of acceleration or otherwise,
o failure to observe or perform certain other covenants contained
in the indenture for 60 days after written notice to us from the
debenture trustee or the holders of at least 25% in aggregate
outstanding principal amount of the debentures,
o our failure to issue and deliver shares of our common stock upon
an election by a holder of TIDES to convert such TIDES,
o certain events of bankruptcy, insolvency or reorganization of our
company, or
o the voluntary or involuntary dissolution, winding-up or
termination of the trust, except in connection with the
distribution of the debentures to the holders of TIDES or common
securities in liquidation of the trust, the redemption of all of
the TIDES and common securities of the trust, or certain mergers,
consolidations or amalgamations, each as permitted by the
declaration of trust.
The holders of a majority in aggregate outstanding principal amount of
the debentures have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the debenture trustee. The debenture
trustee or the holders of not less than 25% in aggregate outstanding principal
amount of the debentures may declare the principal due and payable immediately
upon an event of default under the indenture and, should the debenture trustee
or the holders of debentures fail to make such declaration, the holders of at
least 25% in aggregate liquidation amount of the TIDES will have such right. The
holders of a majority in aggregate outstanding principal amount of the
debentures may annul the declaration and waive the default if the default (other
than the non-payment of the principal of the debentures which has become due
solely by such acceleration) has been cured and a sum sufficient to pay all
matured installments of interest and principal due otherwise than by
acceleration has been deposited with the debenture trustee. Should the holders
of debentures fail to annul the declaration and waive the default, the holders
of a majority in aggregate liquidation amount of the TIDES will have such right.
The holders of a majority in aggregate outstanding principal amount of
the debentures affected thereby may, on behalf of the holders of all the
debentures, waive any past default, except a default in the payment of principal
of (or premium, if any) or interest (unless the default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the debenture trustee) or
a default in respect of a covenant or provision which under the indenture cannot
be modified or amended without the consent of the holder of each outstanding
debenture. Should the holders of such debentures fail to annul the declaration
and waive such default, the holders of a majority in aggregate liquidation
amount of the TIDES will have such right. We are required to file annually with
the debenture trustee a certificate as to whether or not we are in compliance
with all the conditions and covenants applicable to us under the indenture.
If an event of default under the indenture has occurred and is
continuing, the property trustee will have the right to declare the principal of
and the interest on the debentures, and any other amounts payable under the
indenture, to be due and payable and to enforce its other rights as a creditor
with respect to the debentures.
Enforcement of Certain Rights by Holders of TIDES
If an event of default under the indenture has occurred and is
continuing and is attributable to our failure to pay interest or principal on
the debentures on the date such interest or principal is otherwise payable, a
holder of TIDES may institute a direct action against us. We may not amend the
indenture to remove the right to bring a direct action against us without the
prior written consent of the holders of all of the TIDES. Notwithstanding any
payments made to a holder of TIDES by us in connection with a direct action
against us, we will remain obligated to pay the principal of and interest on the
debentures, and will be subrogated to the rights of the TIDES holders with
respect to payments on the TIDES to the extent of any payments made by us to
such holder in any direct action against us.
The holders of the TIDES are not able to exercise directly any
remedies, other than those set forth in the preceding paragraph, available to
the holders of the debentures unless there is an event of default under the
declaration of trust.
Consolidation, Merger, Sale of Assets and Other Transactions
The indenture provides that we may not consolidate with or merge with
or into any other person or convey, transfer or lease our properties and assets
substantially as an entirety to any person, and no person may consolidate with
or merge with or into us or convey, transfer or lease its properties and assets
substantially as an entirety to us, unless:
o in case we consolidate with or merge with or into another person
or convey or transfer our properties and assets substantially as
an entirety to any person, the successor person is organized
under the laws of the United States or any state of the United
States or the District of Columbia, and the successor person
expressly assumes our obligations on the debentures and provides
for conversion rights in accordance with the terms of the
indenture,
o immediately after giving effect to the transaction, no event of
default under the indenture, and no event which, after notice or
lapse of time or both, would become an event of default under the
indenture, will have occurred and be continuing,
o if at the time any TIDES are outstanding, the transaction is
permitted under the declaration of trust and the guarantee and
does not give rise to any breach or violation of the declaration
of trust or the guarantee, and
o other conditions as specified in the indenture are met.
The general provisions of the indenture do not afford holders of the
debentures protection in the event of a highly leveraged or other transaction
involving us that may adversely affect holders of the debentures.
Subordination
In the indenture, we have covenanted and agreed that the debentures
will be subordinate and junior in right of payment to all our senior obligations
to the extent provided in the indenture. Upon any payment or distribution of
assets to creditors upon any liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors, marshaling of assets or
any bankruptcy, insolvency, debt restructuring or similar proceedings in
connection with any insolvency or bankruptcy proceeding of us, the holders of
our senior obligations will first be entitled to receive payment in full before
the holders of debentures will be entitled to receive or retain any payment.
If the maturity of the debentures is accelerated, the holders of all
our senior obligations outstanding at the time of the acceleration will be
entitled to receive payment in full of all amounts due on the senior
obligations, including any amounts due upon acceleration, before the holders of
the debentures will be entitled to receive or retain any payment of the
principal of, and premium and interest, if any, on, the debentures.
In the event that we default in the payment of any principal of, or
premium or interest on, any of our senior obligations, and such default
continues beyond the period of grace, if any, specified in the instrument
evidencing the senior obligations, then, unless and until the default is cured
or waived or ceases to exist or all senior obligations are paid, no direct or
indirect payment may be made or agreed to be made for principal of, and premium
and interest, if any, on, the debentures, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the debentures.
The term "senior obligations" as used in this prospectus means (1) the
principal of, and premium and interest, if any, on all of our debt and (2) any
amount payable in respect of a long-term operating lease of aircraft or aircraft
engines, in each case whether outstanding on the date of execution of the
indenture or thereafter created, assumed or incurred, unless the debt or lease
obligations are expressly stated to rank junior in right of payment to, or pari
passu in right of payment with, the debentures.
However, senior obligations do not include:
o any of our debt which, when incurred and without respect to any
election under Section 1111(b) of the U.S. Bankruptcy Code of
1978, was without recourse to us,
o trade accounts payable and accrued liabilities arising in the
ordinary course of business,
o any of our debt to any of our subsidiaries,
o debt to any of our employees, and
o debt which by its terms is subordinated to trade accounts payable
or accrued liabilities arising in the ordinary course of business
to the extent that payments made to the holders of such debt by
the holders of the debentures as a result of the subordination
provisions of the indenture would be greater than such payments
otherwise would have been as a result of any obligation of such
holders of such debt to pay amounts over to the obligees on such
trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of subordination
provisions to which such debt is subject.
The term "debt" as used in this prospectus means:
o the principal of, and premium and interest, if any, on,
indebtedness for money borrowed, together with all fees,
indemnities and expenses payable under such obligations,
o purchase money and similar obligations,
o obligations under capital leases,
o guarantees, assumptions or purchase commitments relating to, or
other transactions as a result of which we are responsible for
the payment of such indebtedness of others,
o renewals, extensions and refunding of any such indebtedness,
o interest or obligations in respect of any such indebtedness
accruing after the commencement of any insolvency or bankruptcy
proceedings, and
o obligations associated with derivative products such as (a)
securities contracts and foreign currency exchange contracts, (b)
derivative instruments, such as swap agreements (including
interest rate and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate
agreements, foreign exchange agreements, options, commodity
futures contracts and commodity options contracts, and (c)
similar financial instruments.
The indenture places no limitation on the amount of senior obligations
that we or our subsidiaries may incur. At December 31, 2000, our senior
obligations included approximately $3.7 billion of debt and capital lease
obligations. Our senior obligations also included minimum annual commitments
under long-term operating leases of aircraft or aircraft engines.
Structural Subordination
The debentures are effectively junior in right of payment to all of our
subsidiaries' existing or future indebtedness and other liabilities. The
indenture permits our subsidiaries to incur indebtedness and other liabilities
without restriction. Any indebtedness of our subsidiaries effectively ranks
senior to the debentures with respect to such subsidiary's assets. Accordingly,
there might only be a limited amount of assets available to satisfy our
obligations under the debentures and, as a result, the trust's obligations to
holders of the TIDES.
The debentures and the guarantee are exclusively our obligations. Since
our operations are conducted, in part, through our subsidiaries, the cash flow
and the consequent ability to service debt, including our debentures and
guarantee are dependent, in part, upon the earnings of our subsidiaries and the
distribution of those earnings to, or upon loans or other payments of funds by
those subsidiaries to, us. The payment of dividends and the making of loans and
advances to us by our subsidiaries may be subject to statutory or contractual
restrictions, are dependent upon the earnings of those subsidiaries and are
subject to various business considerations.
Any right of ours to receive assets of any of our subsidiaries upon
their liquidation or reorganization (and the consequent right of the holders of
the debentures to participate in those assets) will be effectively subordinated
to the claims of that subsidiary's creditors (including trade creditors), except
to the extent that we are recognized as a creditor of such subsidiary, in which
case our claims would still be subordinate to any security interests in the
assets of such subsidiary and any indebtedness of such subsidiary senior to that
held by us.
Registration and Transfer
The debentures will be represented by one or more global certificates
registered in the name of Cede & Co. as the nominee of DTC if, and only if,
distributed to the holders of the TIDES and the trust's common securities. Until
that time, the debentures will remain registered in the name of and held by the
property trustee. Should the debentures be distributed to holders of the TIDES
and the trust's common securities, beneficial interests in the debentures will
be shown on, and transfers of debentures will be effected only through, records
maintained by participants in DTC. Except as described below, debentures in
certificated form will not be issued in exchange for the global certificates.
A global security will be exchangeable for debentures in certificated
form registered in the names of persons other than Cede & Co. only if:
o DTC notifies us that it is unwilling or unable to continue as a
depositary for the global security or if at any time DTC ceases
to be a clearing agency registered under the Exchange Act,
o we in our sole discretion determine that the global security will
be exchangeable, or
o there shall have occurred and be continuing an event of default
under the indenture.
Payments on debentures held in global form will be made to DTC. For
debentures issued in certificated form, principal and interest will be payable,
the transfer of the debentures will be registrable, and debentures will be
exchangeable for debentures of other denominations of a like aggregate principal
amount, at the corporate office of the debenture trustee in New York, New York,
or at the offices of any paying agent or transfer agent appointed by us,
provided that payment of interest may be made at our option by check mailed to
the address of the persons entitled to payment or by wire transfer.
For a description of DTC and the terms of the depositary arrangements
relating to payments, transfers, voting rights, redemptions and other notices
and other matters, please read the "Description of TIDES--Form, Book-Entry
Procedures and Transfer" section of this prospectus. If the debentures are
distributed to the holders of the TIDES and common securities upon the
termination of the trust, the form, book-entry and transfer procedures with
respect to the TIDES as described under the "Description of TIDES--Form,
Book-Entry Procedures and Transfer" section of this prospectus will apply to the
debentures.
Payment and Paying Agents
Payment of the principal of, and premium and interest, if any, on, the
debentures will be made at the office or agency of us maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. However, at our option, payment of interest may be made (except
in the case of debentures that are held in global form) by check mailed to each
registered holder or by wire transfer. Payment of any interest on any debenture
will be made to the person in whose name the debenture is registered at the
close of business on the record date for such interest, except in the case of
defaulted interest.
Governing Law
The indenture and the debentures are governed by and construed in
accordance with the laws of the State of New York.
Information Concerning the Debenture Trustee
The debenture trustee has and is subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the debenture trustee is under no
obligation to exercise any of the powers vested in it by the indenture at the
request of any holder of debentures, unless offered reasonable indemnity by the
holder against the costs, expenses and liabilities that might be incurred by the
debenture trustee. The debenture trustee is not required to expend or risk its
own funds or otherwise incur personal financial liability in the performance of
its duties if the debenture trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it.
DESCRIPTION OF GUARANTEE
The guarantee was executed and delivered by us concurrently with the
issuance by the trust of the TIDES for the benefit of holders of TIDES.
Wilmington Trust Company acts as trustee under the guarantee agreement. The
guarantee agreement is qualified under the Trust Indenture Act. We have
summarized below selected provisions of the guarantee agreement. This summary is
not complete and is subject to, and qualified in its entirety by reference to,
all of the provisions of the guarantee agreement. The guarantee trustee will
hold the guarantee for the benefit of the holders of the TIDES. The form of
guarantee agreement is filed as an exhibit to the registration statement of
which this prospectus is a part.
General
Under the guarantee agreement, we irrevocably agree to pay in full on a
subordinated basis, to the extent described below, the guarantee payments
described below to the holders of the TIDES regardless of any defense, right of
set-off or counterclaim that the trust may have or assert other than the defense
of payment. The following payments, called the guarantee payments, with respect
to the TIDES, to the extent not paid by or on behalf of the trust, will be
subject to the guarantee:
o any accrued and unpaid distributions required to be paid on the
TIDES, to the extent that the trust has funds on hand available
for payment at such time,
o the applicable redemption price with respect to TIDES called for
redemption, to the extent that the trust has funds on hand
available for payment at such time, and
o upon a voluntary or involuntary dissolution, winding up or
liquidation of the trust, other than in connection with the
distribution of debentures to the holders of the TIDES or the
redemption of all of the TIDES, the lesser of:
o the liquidation distribution, to the extent the trust has
funds available therefor, and
o the amount of assets of the trust remaining available for
distribution to holders of the TIDES upon liquidation of the
trust.
Our obligation to make a guarantee payment may be satisfied by direct
payment of the required amounts by us to the holders of the TIDES or by causing
the trust to pay the amounts to the holders.
The guarantee is an irrevocable guarantee on a subordinated basis of
the trust's obligations under the TIDES. However, the guarantee applies only to
the extent that the trust has funds sufficient to make such payments, and is not
a guarantee of collection. If we do not make interest payments on the debentures
held by the trust, the trust will not be able to pay distributions on the TIDES
and will not have funds legally available for the distributions.
The guarantee ranks subordinate and junior in right of payment to all
senior obligations. In addition, our obligations under the guarantee are
effectively subordinated to all existing and future liabilities of our
subsidiaries. The guarantee does not limit the incurrence or issuance of other
secured or unsecured debt by us or by our subsidiaries, including senior
obligations.
Taken together, our obligations under the guarantee agreement, the
declaration of trust, the debentures and the indenture, including our obligation
to pay the costs, expenses and other liabilities of the trust other than the
trust's obligations to the holders of the TIDES and common securities, provide,
in the aggregate, a full, irrevocable and unconditional guarantee of all of the
trust's obligations under the TIDES. No single document standing alone or
operating in conjunction with fewer than all the other documents constitutes
such guarantee. It is only the combined operation of these documents that has
the effect of providing a full, irrevocable and unconditional guarantee of the
trust's obligations under the TIDES.
Status of the Guarantee
The guarantee is a guarantee of payment and not of collection, meaning
the guaranteed party may institute a legal proceeding directly against us to
enforce its rights under the guarantee without first instituting a legal
proceeding against any other person or entity. The guarantee is held for the
benefit of the holders of the TIDES. The guarantee will not be discharged except
by payment of the guarantee payments in full to the extent not paid by the trust
or upon distribution to the holders of the TIDES of the debentures.
Amendments and Assignment
Except with respect to any changes that do not materially adversely
affect the rights of holders of the TIDES (in which case no vote will be
required), the guarantee may not be amended without the prior approval of the
holders of not less than a majority of the aggregate liquidation amount of the
outstanding TIDES. The manner of obtaining any such approval will be as set
forth under the "Description of TIDES--Voting Rights; Amendment of the
Declaration" section of this prospectus. All guarantees and agreements contained
in the guarantee bind the successors, assigns, receivers, trustees and our
representatives and inure to the benefit of the holders of the TIDES then
outstanding.
Events of Default
An event of default under the guarantee will occur upon our failure to
perform any of our payment or other obligations under the guarantee agreement.
However, except for a failure to make a guarantee payment, we are entitled to
receive notice of the default and cure the default within 60 days after receipt
of the notice. The holders of a majority in aggregate liquidation amount of the
TIDES have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the guarantee trustee in respect of the
guarantee or to direct the exercise of any trust or power conferred upon the
guarantee trustee under the guarantee.
Any holder of the TIDES may institute a legal proceeding directly
against us to enforce its rights under the guarantee without first instituting a
legal proceeding against the trust, the guarantee trustee or any other person or
entity.
We, as guarantor, are required to file annually with the guarantee
trustee a certificate as to whether or not we are in compliance with all the
conditions and covenants applicable to us under the guarantee.
Information Concerning the Guarantee Trustee
The guarantee trustee, other than during the occurrence and continuance
of a default by us in performance of the guarantee, undertakes to perform only
the duties that are specifically described in the guarantee. After a default
under the guarantee agreement, the guarantee trustee must exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the guarantee
trustee is under no obligation to exercise any of the powers vested in it by the
guarantee at the request of any holder of the TIDES unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred.
Termination of the Guarantee
The guarantee will terminate as to each holder of TIDES upon:
o full payment of the redemption price and accrued and unpaid
distributions with respect to all TIDES,
o distribution of the debentures held by the trust to the holders
of the TIDES,
o liquidation of the trust, or
o distribution of our common stock to such holder in respect of the
conversion of such holder's TIDES into common stock.
In addition, the guarantee will terminate completely upon full payment
of the amounts payable in accordance with the declaration of trust. The
guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder must restore payment of any sums paid under the
TIDES or the guarantee.
Governing Law
The guarantee agreement is governed by and construed in accordance with
the laws of the State of New York.
RELATIONSHIP AMONG THE TIDES,
THE DEBENTURES AND THE GUARANTEE
Full and Unconditional Guarantee
Payments of distributions and other amounts due on the TIDES (to the
extent the trust has funds available for the payment of such distributions) are
irrevocably guaranteed by us to the extent set forth under the "Description of
Guarantee" section of this prospectus. Taken together, our obligations under the
debentures, the indenture, the declaration of trust and the guarantee agreement
provide a full, irrevocable and unconditional guarantee of payments of
distributions and other amounts due on the TIDES. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these documents
that has the effect of providing a full, irrevocable and unconditional guarantee
of the trust's obligations under the TIDES. If and to the extent that we do not
make payments on the debentures, the trust will not pay distributions or other
amounts due on the TIDES. The guarantee does not cover payment of distributions
when the trust does not have sufficient funds to pay such distributions. In such
event, the remedy of a holder of TIDES is to institute a direct action against
us under the debentures. Our obligations under the guarantee are subordinate and
junior in right of payment to all our senior obligations.
Sufficiency of Payments
As long as payments of interest and other payments are made when due on
the debentures, the payments will be sufficient to cover distributions and other
payments due on the TIDES, primarily because:
o the aggregate principal amount or applicable redemption price of
the debentures will be equal to the sum of the aggregate
liquidation amount or applicable redemption price, as applicable,
of the TIDES and common securities,
o the interest rate payable on the debentures and interest and
other payment dates on the debentures will match the distribution
rate and distribution and other payment dates for the TIDES,
o we will pay for all costs, expenses and liabilities of the trust
except the trust's obligations to holders of TIDES and common
securities, and
o the declaration of trust further provides that the trust will not
engage in any activity that is not consistent with its limited
purposes.
Notwithstanding anything to the contrary in the indenture, we have the right to
set off any payment we are otherwise required to make under the indenture to the
extent we have made, or are concurrently on the date of such payment making, any
payment under the guarantee used to satisfy the related payment of indebtedness
under the indenture.
Enforcement Rights of Holders of TIDES
Any holder of TIDES may institute a legal proceeding directly against
us to enforce its rights under the guarantee without first instituting a legal
proceeding against the guarantee trustee, the trust or any other person or
entity and may, under certain circumstances, also institute a legal proceeding
directly against us to recover unpaid amounts under the debentures.
A default or event of default under any of our senior obligations would
not constitute a default or event of default under the declaration of trust.
However, in the event of payment defaults under, or acceleration of, our senior
obligations, the subordination provisions of the indenture provide that no
payments may be made in respect of the debentures until the senior obligations
have been paid in full or any payment default thereunder has been cured or
waived. Failure to make required payments on debentures would constitute an
event of default under the declaration of trust.
Limited Purpose of the Trust
The TIDES evidence a beneficial interest in the trust, and the trust
exists for the sole purpose of issuing the TIDES and common securities and
investing the proceeds of the TIDES and common securities in debentures.
Rights Upon Dissolution
Upon any voluntary or involuntary dissolution, winding-up or
liquidation of the trust involving the liquidation of the debentures, after
satisfaction of the liabilities of creditors of the trust as required by
applicable law, the holders of the TIDES and common securities will be entitled
to receive, out of assets held by the trust, the liquidation distribution in
cash. Upon any voluntary or involuntary liquidation or our bankruptcy, the
property trustee, as holder of the debentures, would be a subordinated creditor
of us, subordinated in right of payment to all senior obligations as set forth
in the indenture, but entitled to receive payment in full of principal and
interest, before any of our stockholders receive payments or distributions.
Since we are the guarantor under the guarantee and have agreed to pay for all
costs, expenses and liabilities of the trust, other than the trust's obligations
to the holders of the TIDES and common securities, the positions of a holder of
TIDES and a holder of debentures relative to other creditors and to our
stockholders in the event of liquidation or our bankruptcy are expected to be
substantially the same.
DESCRIPTION OF CAPITAL STOCK
This section contains a description of our capital stock, which
includes our common stock as well as our preferred stock, the terms of which may
affect the common stock. The following summary of the terms of our capital stock
is not meant to be complete and is qualified by reference to our certificate of
incorporation, bylaws and the rights agreement we describe in this section. For
more information, you should read "Where You Can Find More Information."
Our authorized capital stock currently consists of 200 million shares
of common stock and 10 million shares of preferred stock. As of March 14,
2001, we had outstanding 53,616,643 shares of common stock and one share of
Series B preferred stock (the Preferred Stock).
Common Stock
Rights to Dividends and on Liquidation, Dissolution or Winding Up
Common stockholders participate ratably in any dividends or
distributions on the common stock. In the event of any liquidation, dissolution
or winding up of our company, common stockholders are entitled to share ratably
in our assets available for distribution to the stockholders, subject to the
prior rights of holders of any outstanding preferred stock.
Preemptive and Other Subscription Rights
Common stockholders do not have preemptive, subscription, conversion or
redemption rights (other than the anti-dilution rights described under
"--Corporate Governance and Control"), and are not subject to further calls or
assessments.
No Cumulative Voting Rights
Common stockholders do not have the right to cumulate their votes in
the election of directors.
Voting
Holders of common stock are entitled to one vote per share on all
matters submitted to a vote of stockholders, except that voting rights of
non-U.S. citizens are limited as described under "--Limitation on Voting by
Foreign Owners."
Limitation on Voting by Foreign Owners
Our certificate of incorporation provides that shares of capital stock
may not be voted by or at the direction of persons who are not citizens of the
United States unless the shares are registered on a separate stock record.
Applicable restrictions currently require that no more than 25% of our voting
stock be owned or controlled, directly or indirectly, by persons who are not
U.S. citizens, and that our president and at least two-thirds of our directors
or other managing officers be U.S. citizens. For purposes of the certificate of
incorporation, "U.S. citizen" means:
o an individual who is a citizen of the United States,
o a partnership each of whose partners is an individual who is a
citizen of the United States, or
o a corporation or association organized under the laws of the
United States or a State, the District of Columbia, or a
territory or possession of the United States, of which the
president and at least two-thirds of the board of directors and
other managing officers are citizens of the United States, and in
which at least 75% of the voting interest is owned or controlled
by persons that are citizens of the United States.
Our bylaws provide that no shares will be registered on the foreign
stock record if the amount so registered would exceed the restrictions described
above or adversely affect our operating certificates or authorities.
Registration on the foreign stock record is made in chronological order based on
the date we receive a written request for registration. An affiliate of AXA
Financial, Inc. has requested that all shares beneficially owned by AXA
Financial, Inc. and its affiliates be included on our foreign stock record.
Although we have not to date limited the registration of any shares on this
record, subject to certain factors, the registration of the shares beneficially
owned by AXA Financial, Inc. will preclude the registration, and thus the voting
of, any shares owned by any other Continental stockholders that are not U.S.
citizens.
Preferred Stock Purchase Rights
General
One preferred stock purchase right is currently associated with each
outstanding share of our common stock. Each of these preferred stock purchase
rights entitles the registered holder to purchase from us one one-thousandth of
a share of our Series A junior participating preferred stock at a purchase price
of $200 per one one-thousandth of a share, subject to adjustment.
The preferred stock purchase rights will have anti-takeover effects.
The preferred stock purchase rights could cause substantial dilution to a person
or group that attempts to acquire us and effect a change in the composition of
our board of directors on terms not approved by our board of directors,
including by means of a tender offer at a premium to the market price. Subject
to restrictions and limitations contained in our charter, the preferred stock
purchase rights should not interfere with any merger or business combination
approved by our board of directors because we may redeem the preferred stock
purchase rights at the redemption price prior to the time that a person has
become an acquiring person or amend the preferred stock purchase rights to make
them inapplicable to the approved transaction.
The following summary of the material terms of the preferred stock
purchase rights is not meant to be complete and is qualified by reference to the
rights agreement that governs the issuance of the rights. See "Where You Can
Find More Information."
Evidence and Transferability of Preferred Stock Purchase Rights
The preferred stock purchase rights will be evidenced by the
certificates representing shares of common stock until the earlier to occur of:
o 10 days following a public announcement or public disclosure of
facts made by us or an acquiring person that a person or group of
affiliated or associated persons has become an acquiring person,
which occurs, generally, when that person or group has acquired
beneficial ownership of common stock representing 15% or more of
the total number of votes entitled to be cast by the holders of
common stock, and
o 10 business days, or a later date established by our board of
directors before the time any person or group becomes an
acquiring person, following the commencement of, or the first
public announcement of an intention of any person or group to
make, a tender offer or exchange offer that, if completed, would
result in the beneficial ownership by a person or group of shares
of common stock representing 15% or more of such number of votes.
Until the rights distribution date or the earlier redemption or
expiration of the preferred stock purchase rights:
o the preferred stock purchase rights will only be transferred with
the transfer of shares of common stock,
o certificates representing shares of common stock which become
outstanding after the record date for the intitial distribution
of the rights, will contain a notation incorporating the terms of
the preferred stock purchase rights by reference, and
o the surrender for transfer of any certificate representing shares
of common stock will also constitute the transfer of the
preferred stock purchase rights associated with the shares of
common stock represented by that certificate.
As soon as practicable following the rights distribution date, separate
certificates evidencing the preferred stock purchase rights will be mailed to
holders of record of the shares of common stock as of the close of business on
the rights distribution date and those separate preferred stock purchase rights
certificates alone will evidence the rights.
Exempt Persons
We and certain persons affiliated with us are exempt from the
definition of acquiring person.
An exception to the definition of acquiring person in the rights
agreement permits an institutional investor to be or become the beneficial owner
of our common stock representing 15% or more of the voting power of the common
stock then outstanding, subject to certain limitations described below, without
becoming an acquiring person, as long as the institutional investor continues to
be an institutional investor. Generally, an institutional investor is a person
who, as of January 31, 2000:
o beneficially owned more than 14% of the voting power of our
common stock then outstanding,
o had a Schedule 13G on file with the SEC with respect to its
holdings,
o is principally engaged in the business of managing investment
funds for unaffiliated securities investors,
o acquires the common stock pursuant to trading activities
undertaken in the ordinary course of such person's business not
with the purpose or effect of exercising or influencing control
over us, and
o is not obligated to and does not file a Schedule 13D with respect
to our securities.
If our board of directors determines that a person is no longer an
institutional investor, then this person will be required to as promptly as
practicable divest itself of a sufficient number of shares of common stock so
that this person beneficially owns less than 15% of the voting power of our
common stock then outstanding.
If our board of directors determines that this person does not divest
itself of common shares as required, then this person will be or become an
acquiring person under the rights agreement.
AXA Financial, as an institutional investor under the rights agreement,
is permitted to beneficially own, without triggering the rights under the rights
agreement, so long as it retains its status as a passive institutional investor,
up to 47% of the outstanding shares of common stock through December 31, 2001,
and, after December 31, 2001, the lesser of 47% of the outstanding shares of
common stock and the percentage of common stock reported as beneficially owned
by it in any Schedule 13G filed with the SEC after December 31, 2001 (such that
the percentage permitted to be beneficially owned by it will be reduced (down to
25% of the outstanding shares of common stock) to reflect reductions in its
beneficial ownership percentage resulting from subsequent sales of common stock
or increases in the total number of shares of common stock outstanding).
Exercisability of Rights
The preferred stock purchase rights are not exercisable until the
preferred stock purchase rights distribution date. The preferred stock purchase
rights will expire on November 20, 2008, unless the expiration date is extended
or unless the preferred stock purchase rights are earlier redeemed or exchanged
by us, in each case, as described below.
If any person becomes an acquiring person, each holder of a preferred
stock purchase right (other than preferred stock purchase rights beneficially
owned by the acquiring person, which will be void) will, after the date that any
person became an acquiring person, have the right to receive, upon exercise of
those preferred stock purchase rights at the then current exercise price, that
number of shares of common stock, or cash or other securities or assets in
certain circumstances, having a market value of two times the exercise price of
the preferred stock purchase right. If, at any time on or after the date that
any person has become an acquiring person, we are acquired in a merger or other
business combination transaction or 50% or more of our consolidated assets or
earning power are sold, each holder of a preferred stock purchase right will,
after the date of that transaction, have the right to receive, upon the exercise
of those preferred stock purchase rights at the then current exercise price of
the preferred stock purchase right, that number of shares of common stock of the
acquiring company which at the time of that transaction will have a market value
of two times the exercise price of the preferred stock purchase right.
The purchase price payable, and the number of shares of junior
preferred stock or other securities or property issuable, upon exercise of the
preferred stock purchase rights are subject to adjustment from time to time to
prevent dilution in some circumstances.
Until a preferred stock purchase right is exercised, the holder of a
preferred stock purchase right will have no rights as a stockholder of our
company, including the right to vote or to receive dividends.
From and after the occurrence of an event described in Section
11(a)(ii) of the rights agreement, if rights are or were, at any time on or
after the earlier of (1) the date of such event and (2) the distribution date,
acquired or beneficially owned by an acquiring person or an associate or
affiliate of an acquiring person, such rights shall become void, and any holder
of such rights shall thereafter have no right to exercise such rights.
Terms of Junior Preferred Stock
Shares of junior preferred stock, which may be purchased upon exercise
of the preferred stock purchase rights, will not be redeemable. Each share of
junior preferred stock will be entitled to receive when, as and if declared by
the board of directors, out of funds legally available for the purpose, an
amount per share equal to 1,000 times the cash or non-cash dividend declared per
share of common stock. In the event of liquidation, the holders of the junior
preferred stock will be entitled to receive an aggregate payment equal to 1,000
times the payment made per share of common stock. Each share of junior preferred
stock will have 1,000 votes, together with the common stock. Finally, in the
event of any merger, consolidation or other transaction in which the common
stock is exchanged, each share of junior preferred stock will be entitled to
receive an amount equal to 1,000 times the amount received per share of common
stock. The rights are protected by customary antidilution provisions.
Exchange or Redemption
At any time after any person becomes an acquiring person, and prior to
the acquisition by any person or group of a majority of the voting power, our
board of directors may exchange the rights (other than rights owned by such
acquiring person which have become void), in whole or in part, at an exchange
ratio of one share of common stock per right (subject to adjustment). We may, at
our option, substitute preferred shares or common stock equivalents for common
stock, at the rate of one one-thousandth of a preferred share for each share of
common stock (subject to adjustment). No fractional share of common stock will
be issued and in lieu thereof, an adjustment in cash will be made based on the
market price of the share of common stock on the last trading day prior to the
date of exchange.
At any time prior to any person becoming an acquiring person, our board
of directors, by the required board vote, may redeem the rights in whole, but
not in part, at a redemption price of $.001 per right. The redemption of the
rights may be made effective at the time, on any basis and subject to the
conditions which our board of directors may establish. Immediately upon any
redemption of the rights (or upon a later date specified by our board of
directors in the resolution approving a redemption), the right to exercise the
rights will terminate and the only right of the holders of rights will be to
receive the redemption price. The redemption of the rights may be subject to
certain restrictions and limitations contained in our charter.
Our board of directors, by the required board vote, may amend the terms
of the rights without the consent of the holders of the rights, except that from
the time any person becomes an acquiring person, no amendment may adversely
affect the interests of the holders of the rights (other than the acquiring
person and its affiliates and associates). The right of our board of directors
to amend the rights agreement may be subject to certain restrictions and
limitations contained in our charter.
Preferred Stock
In connection with the amendment to the Northwest Alliance, we issued
Northwest one share of a new series of preferred stock, which we refer to as the
Preferred Stock, for a nominal price. Only one share of Preferred Stock is
authorized for issuance. Our Preferred Stock is not convertible into any other
securities. We are not obligated to redeem or retire the Preferred Stock, but we
have the option to redeem the Preferred Stock upon the occurrence of certain
events described below under "--Redemption."
Ranking. The Preferred Stock ranks junior to all classes of our capital
stock other than the common stock upon liquidation, dissolution or winding up of
our company.
Dividends. No dividends are payable on our Preferred Stock.
Voting Rights
The Preferred Stock gives Northwest the right to block, during the term
of the Northwest Alliance, or if earlier, until the Preferred Stock becomes
redeemable,
o certain business combinations and similar changes of control
transactions involving us and a third party major air carrier,
o certain amendments to our rights plan (or redemption of those
rights),
o any dividend or distribution of all or substantially all of our
assets and
o certain reorganizations and restructuring transactions involving
us.
Redemption
The Preferred Stock is redeemable by us at a nominal price (and the
blocking rights eliminated)
o if Northwest transfers or encumbers the Preferred Stock,
o if there is a change of control of Northwest involving a third
party major air carrier,
o on expiration or termination of the Northwest Alliance (other
than as a result of a breach by us), or
o if Northwest materially breaches its standstill obligations to us
or triggers our rights agreement.
Transfer Restriction Agreement
The holder of the Preferred Stock agrees to the following:
o not to transfer, sell or dispose of (1) our common stock, in the
case of a going private transaction, or (2) capital stock of a
holding company, in the case of the establishment of a new
holding company, to a prohibited transferee, which means any
major air carrier or affiliate who would have upon the occurrence
of such transfer, sale or disposition, beneficial ownership of
25% or more of the capital stock or voting power of our company
upon completion of such transfer, sale or disposition, and
o prior to transferring, selling or disposing of (1) our common
stock, in the case of a going private transaction, or (2) capital
stock of a holding company, in the case of the establishment of a
new holding company, to a transferee that is not a prohibited
transferee, the permitted transferee will execute an agreement
with Northwest identical in all material respects to a transfer
restriction agreement that contains the agreements described in
this subsection.
Corporate Governance and Control
The certificate of incorporation provides that our board of directors
will consist of a number of directors as may be determined from time to time by
the board of directors in accordance with the bylaws. Our board of directors
currently consists of 13 directors elected by common stockholders, subject to
the rights of preferred stockholders to elect additional directors as set forth
in any preferred stock designations.
Business Combinations
Our certificate of incorporation provides that we are not governed by
Section 203 of the General Corporation Law of Delaware which, in the absence of
such provisions, would have imposed additional requirements regarding mergers
and other business combinations.
Procedural Matters
Our bylaws require stockholders seeking to nominate directors or
propose other matters for action at a stockholders' meeting to give us notice
within specified periods in advance of the meeting and to follow certain other
specified procedures.
Change of Control
Northwest's ownership of the Preferred Stock, because of the separate
class vote required pursuant to the terms of the Preferred Stock in any required
vote of our stockholders with respect to some changes of control affecting us,
may have the effect of delaying, deferring or preventing a change of control of
our company.
In addition, the existence of the preferred stock purchase rights may
have the effect of delaying or preventing a change of control of our company.
See "--Preferred Stock Purchase Rights" above.
Limitation of Director Liability and Indemnification
Our certificate of incorporation provides, to the full extent permitted
by Delaware law, that directors will not be liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director. As required under
current Delaware law, our certificate of incorporation and bylaws currently
provide that this waiver may not apply to liability
o for any breach of the director's duty of loyalty to us or our
stockholders,
o for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law,
o under Section 174 of the Delaware General Corporation Law
(governing distributions to stockholders), or
o for any transaction from which the director derived any improper
personal benefit.
However, in the event the Delaware General Corporation Law is amended
to authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of any of our directors will be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended. Our certificate of incorporation further
provides that we will indemnify each of our directors and officers to the full
extent permitted by Delaware law and may indemnify certain other persons as
authorized by the Delaware General Corporation Law. These provisions do not
eliminate any monetary liability of directors under the federal securities laws.
TAX CONSEQUENCES
The following is a summary of the material U.S. federal income tax
consequences of the ownership and disposition of the TIDES, but does not purport
to be a complete analysis of all the potential tax considerations relating
thereto. Unless otherwise stated, this summary deals only with TIDES held as
capital assets by holders.
The tax treatment of a holder may vary depending on its particular
situation. This summary does not deal with special classes of holders, such as,
for example, dealers in securities or currencies, banks, thrifts, real estate
investment trusts, regulated investment companies, insurance companies, tax
exempt organizations, persons holding TIDES as part of a straddle or as part of
a hedging or conversion transaction or other integrated investment, or persons
whose functional currency is not the U.S. dollar. Further, it does not include
any description of alternative minimum tax consequences or the tax laws of any
state, local or foreign government that may be applicable to the TIDES.
This summary is based on the Internal Revenue Code of 1986, the
Treasury Regulations thereunder and administrative and judicial interpretations
thereof as of the date hereof, and all of which are subject to change (possibly
on a retroactive basis). In particular, legislation was proposed by the Clinton
Administration in 1996, 1997, 1998 and 1999 to prohibit or defer an issuer's
ability to deduct interest on certain types of debt instruments. If such
legislation is ultimately enacted, it could limit our ability to deduct interest
with respect to the TIDES, which, in turn, would constitute a "tax event." Upon
the occurrence of a tax event, we may be permitted to redeem the debentures,
which would trigger a redemption of the TIDES. See "Description of TIDES--Tax
Event or Investment Company Event Redemption or Distribution."
The authorities on which this summary is based are subject to various
interpretations, and it is therefore possible that the federal income tax
treatment of the ownership and disposition of the TIDES may differ from the
treatment described below. We have not sought any ruling from the IRS with
respect to the statements made and the conclusions reached in the following
summary, and there can be no assurance that the IRS will agree with such
statements and conclusions. In addition, the IRS is not precluded from
successfully adopting a contrary position. This summary does not consider the
effect of any applicable foreign, state, local or other tax laws.
As used herein, the term "U.S. Holder" means a beneficial owner of
TIDES that is for U.S. federal income tax purposes: (1) an individual who is a
citizen or resident of the United States, (2) a U.S. domestic corporation, (3)
an estate, the income of which is subject to federal income taxation regardless
of its source, or (4) in general, a trust subject to the primary supervision of
a U.S. court and the control of one or more U.S. persons. A "Foreign Holder" is
any holder of TIDES that is a nonresident alien individual or a foreign
corporation.
Investors are advised to consult their tax advisors as to the tax
consequences of the ownership and disposition of the TIDES, in light of their
particular circumstances, under federal income and estate tax laws and any
applicable state, local, foreign and other tax laws or tax treaties, including
the effects of possible future changes in such laws.
Classification of the Debentures
In the opinion of Cleary, Gottlieb, Steen & Hamilton, under current law
and assuming the accuracy of, and full compliance with, the terms of the
indenture (and certain other documents), and based on certain representations we
have made, the debentures will be treated for U.S. federal income tax purposes
as our indebtedness. By acceptance of a TIDES, each holder agrees to treat the
debentures as our indebtedness.
Classification of the Trust
In the opinion of Cleary, Gottlieb, Steen & Hamilton, under current law
and assuming the accuracy of, and full compliance with, the terms of the trust
agreement and the indenture (and certain other documents), the trust will be
treated for U.S. federal income tax purposes as a grantor trust and not as an
association taxable as a corporation. Accordingly, for U.S. federal income tax
purposes, each holder of TIDES will be considered the owner of an undivided
beneficial ownership interest in the debentures, and each U.S. Holder will be
required to include in its gross income any interest (or original issue discount
accrued) with respect to its allocable share of those debentures. By acceptance
of a TIDES, each holder agrees to treat the TIDES as an undivided ownership
interest in the debentures. See "--U.S. Holders--Interest Income and Original
Issue Discount."
An opinion of counsel is not binding on the IRS or the courts.
Prospective investors should note that no rulings have been or are expected to
be sought from the IRS with respect to any of these issues and no assurance can
be given that the IRS will not take contrary positions. Moreover, no assurance
can be given that any of the opinions expressed herein will not be challenged by
the IRS or, if challenged, that such challenge will not be successful.
U.S. Holders
Interest Income and Original Issue Discount
As a result of our option to defer the payment of interest on the
debentures, U.S. Holders of TIDES are required to recognize interest income in
accordance with the "original issue discount" rules of the Code. Accordingly,
each U.S. Holder of TIDES, including a U.S. Holder that uses the cash method of
accounting, generally will be required to recognize its pro rata share of
interest income on the debentures as it accrues in accordance with a constant
yield method based on a compounding of interest, over the entire term of the
debentures. U.S. Holders will be required to recognize accrued interest income
regardless of whether distributions are made on the TIDES, and regardless of
whether we exercise our option to extend any interest payment period. Subject to
the market discount and acquisition premium rules discussed below, the amount of
interest income that will be recognized in any quarter will approximately equal
the amount of interest that accrues on the debentures in the quarter at the
stated interest rate. Actual distributions of stated interest will not be
separately reported as taxable income. Consequently, during a deferral period, a
holder will be required to include accrued interest in gross income even though
we have not made any actual cash payments.
A U.S. Holder's initial tax basis for its pro rata share of the
debentures will be equal to the U.S. Holder's purchase price paid for its TIDES
and will be increased by the accrued interest includible in the holder's gross
income and reduced by the amount of distributions or other payments received by
the holder on the TIDES. No portion of the amounts received on the TIDES will be
eligible for the dividends received deduction.
Market Discount
If you purchase a TIDES at a price that is lower than the adjusted
issue price (as defined below) of the TIDES' pro rata share of the debentures,
by 0.25% or more of the adjusted issue price multiplied by the number of
remaining whole years to maturity, the debentures will be considered to bear
"market discount" in your hands. In this case, any gain that you realize on the
disposition of the TIDES generally will be treated as ordinary interest income
to the extent of the market discount that accrued on the related debentures
during your holding period. In addition, you may be required to defer the
deduction of a portion of the interest paid on any indebtedness that you
incurred or continued to purchase or carry the TIDES. In general, market
discount will be treated as accruing ratably over the term of the debentures,
or, at your election, under a constant yield method. Special rules apply if you
convert TIDES into our common stock. See "--Conversion of TIDES into Common
Stock."
You may elect to include market discount in gross income currently as
it accrues (on either a ratable or constant yield basis), in lieu of treating a
portion of any gain realized on a sale of the TIDES as ordinary income. If you
elect to include market discount on a current basis, the interest deduction
deferral rule described in the preceding paragraph will not apply. If you do
make such an election, it will apply to all market discount debt instruments
that you acquire on or after the first day in the first taxable year to which
the election applies. The election may not be revoked without the consent of the
IRS.
The "adjusted issue price" of a debenture will equal the original
purchase price paid for the debenture, increased by the accrued interest
includible in the holder's gross income and reduced by the distributions or
other payments we have made on the debenture.
Acquisition Premium
If you purchase a TIDES at a price that is greater than the adjusted
issue price of the TIDES' pro rata share of the debentures, the amount of
interest income you are required to accrue will be reduced to take into account
the "acquisition premium." The daily amount of interest income you are otherwise
required to accrue will be reduced by an amount equal to the product of (1) such
daily portion and (2) a fraction, the numerator of which is the amount of the
acquisition premium and the denominator of which is the sum of the interest
income (including original interest income) for all days on or after you
purchase the TIDES.
Deferral of Interest Payment Period
U.S. Holders of TIDES will be required to include accrued (but unpaid)
interest in income with respect to their pro rata share of the debentures during
a deferral period. Therefore, a U.S. Holder who sells TIDES during such a
deferral period will not be entitled to any cash relating to accrued but unpaid
interest (such cash will be paid to the holder of record at the end of the
deferral period), but will be required to include such interest in income.
Distribution of Debentures
A distribution by the trust of the debentures as described under the
caption "Description of TIDES--Liquidation of the Trust and Distribution of the
Debentures" will result in the holder receiving directly its pro rata share of
the debentures previously held indirectly through the trust. Such a transaction
will be nontaxable to the holder, who will receive such debentures with a
holding period and tax basis equal to the holding period and adjusted tax basis
such U.S. Holder was considered to have had in its pro rata share of the
underlying debentures prior to such distribution. A U.S. Holder will include
interest income in respect of the debentures received from the trust in the
manner described above under the caption "--Interest Income and Original Issue
Discount."
Disposition of the TIDES
Upon a sale, exchange or other disposition of TIDES (including a
distribution of cash in redemption of a U.S. Holder's TIDES, and repayment of
the underlying debentures, but excluding a distribution of debentures and the
conversion of the TIDES into common stock), a holder will be considered to have
disposed of all or part of such holder's pro rata share of the debentures, and
will recognize gain or loss equal to the difference between (1) the amount of
cash proceeds and the fair market value of any property received on the sale,
exchange or other disposition (except to the extent such amount is attributable
to accrued interest income not previously included in income (which is taxable
as ordinary income) or is treated as ordinary income pursuant to the market
discount rules) and (2) the holder's adjusted tax basis in its pro rata share of
the underlying debentures deemed disposed of. Such gain or loss will be capital
gain or loss and generally will be long-term capital gain or loss if the TIDES
have been held by the holder for more than one year. Holders are advised to
consult their tax advisors as to the federal income tax treatment of a capital
gain or loss.
The TIDES may trade at a price that does not fully reflect the value of
accrued but unpaid interest with respect to the underlying debentures. A holder
who disposes of the TIDES between record dates for payments of distributions
thereon or during an interest deferral period will nevertheless be required to
include in income accrued but unpaid interest on the debentures through the date
of disposition, and to add such amount to its adjusted tax basis in its pro rata
share of the underlying debentures deemed disposed of. Accordingly, such a
holder will recognize a capital loss to the extent the selling price (which may
not fully reflect the value of accrued but unpaid interest) is less than the
holder's adjusted tax basis (which will include accrued but unpaid interest).
Subject to certain limited exceptions, capital losses cannot be applied to
offset ordinary income for federal income tax purposes. Therefore, it is
possible that the holder will not be able to offset such accrued but unpaid
interest income against any such capital loss (although such capital loss could
be used to offset capital gains of such holder).
Conversion of TIDES into Common Stock
A U.S. holder generally will not recognize income, gain or loss upon
the conversion, through the conversion agent, of debentures into our common
stock. A holder will, however, recognize gain upon the receipt of cash in lieu
of a fractional share of our common stock equal to the amount of cash so
received less such holder's tax basis in such fractional share (except to the
extent such gain is treated as ordinary income pursuant to the market discount
rules). A holder who converts TIDES into our common stock (1) will take a tax
basis in such stock that, in general, is equal to such holder's tax basis in the
TIDES delivered to the conversion agent for exchange, less the basis allocated
to any fractional share for which cash is received, and (2) the holding period
of such stock generally will include the holding period of the TIDES delivered
to the conversion agent for exchange, except (in the case of both (1) and (2))
possibly with respect to any of our common stock received in respect of accrued
but unpaid interest.
Pursuant to the market discount rules, in the event that you convert
TIDES into our common stock, any gain on the sale, exchange or other disposition
of the common stock generally will be treated as ordinary income to the extent
of the market discount that accrued on the related debentures before you
converted the TIDES.
Adjustment of Conversion Price
Tax regulations promulgated under Section 305 of the Code could treat
holders of TIDES as receiving a constructive distribution upon certain
circumstances in which the conversion rate of the debentures is adjusted.
Accordingly, a reduction in the conversion price for the debentures may, under
certain circumstances, result in deemed dividend income to holders of TIDES to
the extent of our current or accumulated earnings and profits. Holders of TIDES
are advised to consult their tax advisors as to the federal income tax
consequences of adjustments in the conversion rate of TIDES.
Information Reporting and Backup Withholding
The trust will report the interest accrued during the year with respect
to the debentures, and any gross proceeds received by the trust from the
retirement or redemption of the debentures, annually to the holders of record of
the TIDES and to the IRS. The trust currently intends to deliver such reports to
holders of record not later than January 31st following each calendar year. It
is anticipated that persons who hold TIDES as nominees for beneficial owners
will report the required tax information to beneficial owners on Form 1099.
Payments made on, and proceeds from the sale of, TIDES, any debentures
distributed by the trust or any of our common stock received on conversion may
be subject to 31% backup withholding unless the holder complies with certain
identification requirements or otherwise qualifies for exemption. Backup
withholding is not an additional tax. Any withheld amounts will generally be
refunded or credited against the holder's federal income tax liability, provided
the required information is timely filed with the IRS.
Foreign Holders
Interest Income and Original Issue Discount
A Foreign Holder of a TIDES or the debentures will not be subject to
withholding of U.S. federal income tax with regard to its interest income and
original issue discount, provided that, with respect to payment of interest:
o the Foreign Holder does not actually or constructively own 10% or
more of the combined voting power of all classes of stock of the
Issuer,
o the Foreign Holder is not a controlled foreign corporation that
is related to us through stock ownership, and
o the beneficial owner satisfies certain documentary evidence
requirements for establishing that it is a Foreign Holder.
In the event that the TIDES were characterized as stock or other equity
of our company, payments to a holder could be characterized as dividends and be
subject to a 30% withholding tax or such lesser amount as may be provided under
an applicable treaty. If a Foreign Holder is treated as receiving a deemed
dividend as a result of an adjustment of the conversion price of the debentures,
as described above under "U.S. Holders--Adjustment of the Conversion Price,"
such deemed dividend will be subject to a 30% withholding tax (or a lesser
amount under an applicable treaty). However, if such dividend income is
effectively connected with the conduct of a trade or business of the Foreign
Holder in the United States, then such income will be subject to the regular
U.S. federal income tax rules.
Disposition of the TIDES or Debentures
A holder of a TIDES or the debentures that is a Foreign Holder will not
be subject to U.S. federal income tax on any gain realized on the sale, exchange
or redemption of the TIDES or the debentures, unless:
o such gain is effectively connected with the conduct by the holder
of a trade or business in the United States, or
o in the case of gain realized by an individual Foreign Holder, the
Foreign Holder is present in the United States for 183 days or
more in the taxable year of the sale and either (A) such gain or
income is attributable to an office or other fixed place of
business maintained in the United States by such holder or (B)
such holder has a tax home in the United States.
Conversion of TIDES into Common Stock
A Foreign Holder generally will not recognize income, gain or loss upon
the conversion, through the conversion agent, of debentures into our common
stock. Such holder will, however, realize gain upon the receipt of cash in lieu
of a fractional share of our common stock equal to the amount of cash so
received less such holder's tax basis in such fractional share. The tax
consequences of such gain will be the same as described above under the caption
"--Foreign Holders--Disposition of the TIDES or Debentures."
In general, dividends paid to Foreign Holders on our common stock are
subject to U.S. federal income tax at a rate of 30% (unless a U.S. withholding
tax treaty applies to reduce or eliminate withholding). However, if such
dividend income is effectively connected with the conduct of a trade or business
of the Foreign Holder in the United States, then such income is subject to the
regular U.S. federal income tax rules.
Information Reporting and Backup Withholding
Payments made on, and proceeds from the sale of, TIDES, any debentures
distributed by the trust, or any of our common stock received on conversion may
be subject to 31% backup withholding and information reporting unless a Foreign
Holder complies with certain documentation requirements or otherwise qualifies
for an exemption.
CERTAIN ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit
plan subject to ERISA should consider the fiduciary standards of ERISA in the
context of the plan's particular circumstances before authorizing an investment
in the TIDES. Accordingly, among other factors, the fiduciary should consider
whether the investment would satisfy the prudence and diversification
requirements of ERISA, whether the investment could result in an improper
delegation of fiduciary authority and whether the investment would be consistent
with the documents and instruments governing the plan.
Section 406 of ERISA and Section 4975 of the Code prohibit plans, as
well as individual retirement accounts and Keogh plans subject to Section 4975
of the Code, from engaging in certain transactions involving "plan assets" with
persons who are "parties in interest" under ERISA or "disqualified persons"
under the Code with respect to such plans. A violation of these "prohibited
transaction" rules may result in an excise tax or other liabilities under ERISA
and/or Section 4975 of the Code for such persons, unless exemptive relief is
available under an applicable statutory or administrative exemption. Employee
benefit plans that are governmental plans (as defined in Section 3(32) of
ERISA), certain church plans (as defined in Section 3(33) of ERISA) and foreign
plans (as described in Section 4(b)(4) of ERISA) are not subject to the
requirements of ERISA or Section 4975 of the Code.
Under a regulation issued by the United States Department of Labor, or
DOL, the assets of the trust would be deemed to be "plan assets" of a plan for
purposes of ERISA and Section 4975 of the Code if "plan assets" of the plan were
used to acquire an equity interest in the trust and no exception were applicable
under the plan assets regulation. An "equity interest" is defined under the plan
assets regulation as any interest in an entity other than an instrument that is
treated as indebtedness under applicable local law and that has no substantial
equity features and specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the plan assets regulation, the
assets of the trust would not be deemed to be "plan assets" of investing plans
if, immediately after the most recent acquisitions of any equity interest in the
trust, less than 25% of the value of each class of equity interests in the trust
were held by plans, other employee benefit plans not subject to ERISA or Section
4975 of the Code (such as governmental, church and foreign plans), and entities
holding assets deemed to be "plan assets" of any plan (collectively, "benefit
plan investors"). We cannot assure that the value of the TIDES held by benefit
plan investors will be less than 25% of the total value of such TIDES at the
time of purchase or otherwise and the level of benefit investor participation
will not be monitored.
Certain transactions involving the trust could be deemed to constitute
direct or indirect prohibited transactions under ERISA and Section 4975 of the
Code with respect to a plan if the TIDES were acquired with "plan assets" of
such plan and assets of the trust were deemed to be "plan assets" of plans
investing in the trust. For example, if we are a party in interest with respect
to an investing plan (either directly or by reasons of our ownership of our
subsidiaries), extensions of credit between the trust and us (as represented by
the debentures and the guarantee) would likely be prohibited by Section
406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the Code, unless exemptive
relief were available under an applicable administrative exemption (see below).
Because the assets of the trust may be considered "plan assets" for ERISA
purposes as a result of a plan's acquisition and holding of TIDES, a plan
fiduciary should consider (a) whether powers which potentially may be exercised
by any person or entity with respect to the trust or its assets would result in
such person or entity being potentially deemed to be a fiduciary and, therefore,
a party in interest with respect to a plan acquiring or holding TIDES and (b) if
so, whether such acquisition and holding could result in a delegation of
fiduciary authority which is impermissible under the plan's governing
instruments or any investment management agreement with the plan. In making such
determination, a plan fiduciary should note that prior to a default, the
trustees will have only limited custodial and ministerial authority with respect
to the assets of the trust.
The DOL has issued a number of prohibited transaction class exemptions
that may provide exemptive relief for direct or indirect prohibited transactions
resulting from the purchase or holding of the TIDES. Those class exemptions
include PTCE 96-23 (for certain transactions determined by in-house asset
managers), PTCE 95-60 (for certain transactions involving insurance company
general accounts), PTCE 91-38 (for certain transactions involving bank
collective investments funds), PTCE 90-1 (for certain transactions involving
insurance company separate accounts) and PTCE 84-14 (for certain transactions
determined by qualified professional asset managers).
Governmental plans and certain church plans, while not subject to the
fiduciary responsibility provisions of ERISA or the provisions of section 4975
of the Code, may, nevertheless be subject to state or other Federal laws that
are substantially similar to the foregoing provisions of ERISA, and the Code.
Fiduciaries of such plans should consult with their counsel before purchasing
any TIDES.
By its purchase of any TIDES (or any interest therein), the purchaser
thereof will be deemed to have represented either that (a) it is not a plan or
other entity whose underlying assets are subject to ERISA and/or Section 4975 of
the Code, or a governmental or church plan which is subject to any Federal,
state or local law that is substantially similar to the provisions of Section
406 of ERISA or Section 4975 of the Code or (b) its purchase and holding of a
TIDES will not result in a non-exempt prohibited transaction under Section 406
of ERISA or Section 4975 of the Code (or, in the case of a governmental or
church plan, a violation of any substantially similar Federal, state or local
law). Further, the fiduciaries of any plan or plan assets entity which may
purchase or hold TIDES will be deemed as a result of such acquisition or holding
to have (a) directed the trust to invest in the debentures, (b) authorized and
directed any of the actions taken or which may be taken with respect to the
trust, the debentures and the TIDES by any of the trustees, the debenture
trustee, the guarantee trustee or us as contemplated by the indenture, the
debentures or the guarantee and (c) to have appointed the trustees.
Due to the complexity of these rules and the penalties that may be
imposed upon persons involved in non-exempt prohibited transactions, it is
particularly important that fiduciaries or other persons considering purchasing
the TIDES on behalf of or with "plan assets" of any plan consult with their
counsel regarding the potential consequences if the assets of the trust were
deemed to be "plan assets" and to confirm that such investment will not
constitute or result in a prohibited transaction or any other violation of an
applicable requirement of ERISA.
REGISTRATION RIGHTS
We and the trust entered into a registration agreement with the initial
purchasers of the TIDES for the benefit of the holders of the TIDES wherein we
and the trust agreed, at our sole expense, to use our best efforts to keep
effective the shelf registration statement, of which this prospectus is a part,
for two years or such other period as required under Rule 144(k) of the
Securities Act or any successor rule hereto or, if earlier, such time as all of
the applicable securities have been sold thereunder.
We will provide to each holder for whom the registration statement was
filed copies of this prospectus, which is a part of the registration statement,
and take certain other actions as are required to permit unrestricted resales of
the securities. A holder that sells securities pursuant to this registration
statement is required to be named as a selling security holder in the related
prospectus and to deliver a prospectus to purchasers, will be subject to certain
of the civil liability provisions under the Securities Act in connection with
such sales and will be bound by the provisions of the registration agreement
that are applicable to such a holder (including certain indemnification rights
and obligations).
If we or the trust fail to keep the registration statement, of which
this prospectus is a part, continuously effective and usable (subject to some
exceptions) for the period required by the registration agreement, then
additional interest, referred to in this prospectus as special interest, will
accrue on the debentures, and corresponding special distributions will accrue on
the TIDES and common securities, in each case from and including the day
following the registration default to but excluding the day on which the
registration default has been cured or has been deemed to have been cured.
Special interest and special distributions will be paid in cash quarterly in
arrears on each interest payment date commencing with the first interest payment
date following the applicable registration default and will accrue at a rate so
that the interest rate or distribution rate, as the case may, will be increased
0.50% per annum of the principal amount or liquidation amount, as applicable.
Following the cure of a registration default, special interest and special
distributions will cease to accrue with respect to the applicable registration
default.
Each security contains a legend to the effect that the holder of the
security, by its acceptance of the security, is deemed to have agreed to be
bound by the provisions of the registration agreement.
The registration agreement is governed by, and construed in accordance
with, the laws of the State of New York. This summary of the registration
agreement is not complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of the registration agreement. A form of the
registration agreement is filed as an exhibit to the registration statement of
which this prospectus is a part.
SELLING HOLDERS
The TIDES were originally issued by the trust and sold by Credit Suisse
First Boston Corporation and UBS Warburg LLC in a transaction exempt from the
registration requirements of the Securities Act, to persons reasonably believed
by such initial purchasers to be "qualified institutional buyers" (as defined in
Rule 144A under the Securities Act). The holders named below and their
transferees, pledgees, donees or successors, which we refer to as the selling
holders, may from time to time offer and sell pursuant to this prospectus any or
all of the TIDES, and any common stock issued upon conversion of the TIDES.
The following table sets forth information, as of March 14, 2001,
with respect to the selling holders of the TIDES and the respective number of
TIDES beneficially owned by each selling holder that the selling holder may
offer using this prospectus.
Principal Amount of TIDES Number of Shares of Common Number of Shares of Common
Beneficially Owned and Stock Owned Prior to the Stock Offered by this
Selling Holder Offered by this Prospectus Offering (1) Prospectus (1)(2)
- ------------------------------- -------------------------- -------------------------- --------------------------
1976 Distribution Trust FBO
Jane A. Lauder.............. 529 440 440
1976 Distribution Trust FBO
A.R. Lauder/Zinterhofer 531 442 442
AIG SoundShore Holdings Ltd.... 154,000 128,333 128,333
AIG SoundShore Strategic
Holding Fund Ltd............ 66,000 55,000 55,000
Alexandra Global Investment
Fund 1...................... 85,000 70,833 70,833
Allstate Life Insurance
Company..................... 3,500 2,916 2,916
Alpine Associates.............. 111,500 92,916 92,916
Alpine Partners, L.P........... 18,500 15,416 15,416
American Motorist Insurance
Company..................... 19,614 16,345 16,345
Arapahoe County Colorado....... 1,928 1,606 1,606
Bancroft Convertible Fund,
Inc......................... 20,000 16,666 16,666
British Virgin Island
Social Security Board....... 1,474 1,228 1,228
Castle Convertible Fund,
Inc......................... 25,000 20,833 20,833
City of New Orleans............ 8,044 6,703 6,703
City University of New York.... 4,739 3,949 3,949
Clinton Riverside Convertible
Portfolio Limited........... 50,000 41,666 41,666
Ellsworth Convertible
Growth and Income Fund, Inc. 20,000 16,666 16,666
Evergreen Equity Income Fund... 160,000 133,333 133,333
Global Bermuda Limited
Partnership................. 6,000 5,000 5,000
The Grable Foundation.......... 3,679 3,065 3,065
Grady Hospital Foundation...... 4,145 3,454 3,454
Independence Blue Cross........ 4,424 3,686 3,686
KBC Financial Products USA..... 50,000 41,666 41,666
Kellner, DiLeo & Co............ 29,300 24,416 24,416
Lakeshore International Ltd.... 14,000 11,666 11,666
Lipper Convertibles, L.P....... 750,000 625,000 625,000
Local Initiators Support
Corporation................. 1,844 1,536 1,536
McMahan Securities Co. L.P..... 8,300 6,916 6,916
Merrill Lynch Insurance
Group....................... 8,932 7,443 7,443
Morgan Stanley & Co............ 25,000 20,833 20,833
Municipal Employees............ 4,155 3,462 3,462
Nabisco Holdings............... 1,173 977 977
New Orleans Fire Fighters
Pension/Relief Fund......... 4,270 3,558 3,558
New York Life Insurance
Company..................... 405,000 337,500 337,500
New York Life Insurance and
Annuity Corporation......... 45,000 37,500 37,500
Occidental Petroleum
Corporation................. 7,830 6,525 6,525
Ohio Bureau of Workers
Compensation................ 5,708 4,756 4,756
Oppenheimer Convertible
Security Fund............... 110,000 91,666 91,666
Pro Mutual..................... 23,477 19,564 19,564
Prudential Securities.......... 27,802 23,168 23,168
R2 Investments, LDC............ 200,000 166,666 166,666
Raytheon Master Pension
Trust....................... 21,279 17,732 17,732
RJR Reynolds................... 3,672 3,060 3,060
Shell Pension Trust............ 16,377 13,647 13,647
State of Maryland
Retirement System........... 100,880 84,066 84,066
TQA Master Plus Fund, Ltd...... 35,000 29,166 29,166
UBS O.Connor LLC F/B/O UBS
Global Equity Arbitrage
Master Ltd.................. 5,000 4,166 4,166
--------- --------- ---------
Subtotal.................. 2,672,606 2,227,151 2,227,151
Unnamed holders of TIDES or
any future transferees,
pledgees, donees or
successors of or from
any such named holder
(3)(4)...................... 2,327,394 1,939,516 1,939,516
--------- --------- ---------
Total..................... 5,000,000 4,166,667 4,166,667
========= ========= =========
- ------------------
(1) Comprises the shares of common stock into which the TIDES held by such
selling holder are convertible at the initial conversion price. The
conversion price and the number of shares of common stock issuable upon
conversion of the TIDES are subject to adjustment under certain
circumstances. Accordingly, the number of shares of common stock issuable
upon conversion of the TIDES may increase or decrease from time to time.
Fractional shares will not be issued upon conversion of the TIDES; rather,
cash will be paid in lieu of fractional shares, if any.
(2) Assumes the offering of such shares by such selling holder pursuant to the
registration statement of which this prospectus forms a part.
(3) No such holder may offer TIDES or common stock pursuant to the
registration statement of which this prospectus forms a part until such
holder is included as a selling holder in a supplement to this prospectus.
(4) Assumes that the unnamed holders of TIDES or common stock or any future
transferees, pledgees, donees or successors of or from any such named
holder do not beneficially own any common stock other than the common
stock issuable upon conversion of the TIDES at the initial conversion
price.
None of the selling holders has, or within the past three years has
had, any position, office or other material relationship with the trust or us or
any of its or our predecessors or affiliates.
Because the selling holders may, pursuant to this prospectus, offer all
or some portion of the TIDES or common stock they presently hold, no estimate
can be given as to the amount of the TIDES or shares of common stock that will
be held by the selling holders upon termination of any such sales. In addition,
some or all of the selling holders identified above may have sold, transferred
or otherwise disposed of all or a portion of their TIDES or common stock since
the date on which they provided the information regarding their TIDES or common
stock, in transactions exempt from the registration requirements of the
Securities Act.
Only selling holders identified above who beneficially own the TIDES or
common stock set forth opposite each such selling holder's name in the foregoing
table on the effective date of the registration statement of which this
prospectus forms a part may sell such TIDES or common stock pursuant to the
registration statement. We may from time to time include additional selling
holders in supplements to this prospectus.
We will pay the expenses of registering the TIDES and common stock
being offered by this prospectus.
PLAN OF DISTRIBUTION
The offered securities may be sold from time to time to purchasers
directly by the selling holders. Alternatively, the selling holders may from
time to time offer the offered securities to or through underwriters,
broker/dealers or agents, who may receive compensation in the form of
underwriting discounts, concessions or commissions from the selling holders or
the purchasers of such offered securities for whom they may act as agents. The
selling holders and any underwriters, broker/dealers or agents that participate
in the distribution of offered securities may be deemed to be "underwriters"
within the meaning of the Securities Act, and any profit on the sale of such
securities by them and any underwriter, broker/dealer or agent may be deemed to
be underwriting discounts and commissions under the Securities Act.
The offered securities may be sold by the selling holders from time to
time, in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale or at
negotiated prices. Such prices will be determined by the selling holders. The
sale of the offered securities may be effected in transactions (which may
involve crosses or block transactions) (1) on any national securities exchange
or quotation service on which the offered securities may be listed or quoted at
the time of sale, (2) in the over-the-counter market, (3) otherwise than on such
exchanges or in the over-the-counter market or (4) through the writing of
options. At the time a particular offering of the offered securities is made, if
required, a prospectus supplement will be distributed which will set forth the
names of the selling holders, the aggregate amount and type of offered
securities being offered, and, to the extent required, the terms of the
offering, including the name or names of any underwriters, broker/dealers or
agents, any discounts, commissions and other terms constituting compensation
from the selling holders and any discounts, commissions or concessions allowed
or reallowed or paid to broker/dealers.
To comply with the securities laws of certain jurisdictions, if
applicable, the offered securities will be offered or sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in certain
jurisdictions the offered securities may not be offered or sold unless they have
been registered or qualified for sale in such jurisdictions or any exemption
from registration or qualification is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of the offered securities may be limited in its
ability to engage in market activities with respect to such securities. In
addition and without limiting the foregoing, each selling holder will be subject
to applicable provisions of the Exchange Act and the rules and regulations
thereunder, which provisions may limit the timing of purchases and sales of any
of the offered securities by the selling holders. All of the foregoing may
affect the marketability of the offered securities.
Pursuant to the registration agreement, we will pay all expenses of the
registration of the offered securities, including, without limitation, SEC
filing fees and expenses of compliance with state securities or "blue sky" laws.
The selling holders will pay any underwriting discounts and selling commissions.
The selling holders will be indemnified by us and the trust, jointly and
severally, against certain civil liabilities, including certain liabilities
under the Securities Act, or will be entitled to contribution in connection
therewith. We and the trust will be indemnified by the selling holders severally
against certain civil liabilities, including certain liabilities under the
Securities Act, or will be entitled to contribution in connection therewith.
Pursuant to the registration agreement, we are required to use our best
efforts to keep the registration statement, of which this prospectus is a part,
continuously effective for a period of two years from its effective date or such
shorter period that will terminate upon the earlier of the date on which the
offered securities shall have been sold pursuant to the registration statement
or the date on which the offered securities are permitted to be freely sold or
distributed to the public pursuant to any exemption from the registration
requirements of the Securities Act (including in reliance on Rule 144(k) but
excluding in reliance on Rule 144A under the Securities Act). Notwithstanding
these obligations, we may, under certain circumstances, postpone or suspend the
filing or the effectiveness of the registration statement (or any amendments or
supplements thereto) or the sale of offered securities under the registration
statement.
LEGAL MATTERS
Morris, Nichols, Arsht & Tunnell, special Delaware counsel to the trust
and us, will pass on certain matters of Delaware law relating to the validity of
the TIDES. The validity of the guarantee, the debentures and the common stock
issuable upon conversion of the TIDES, as well as certain tax matters, will be
passed on by Cleary, Gottlieb, Steen & Hamilton, New York, New York.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended December 31, 2000 as set forth in their reports, which are
incorporated by reference in this prospectus and elsewhere in the registration
statement of which this prospectus is a part. Our financial statements and
schedule are incorporated by reg=ference in reliance on Ernst & Young LLP's
report, given on their authority as experts in accounting and auditing.
[CONTINENTAL LOGO]
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection
with the distribution of the securities covered by this Registration Statement.
Continental Airlines, Inc. (the "Company") will bear all of these expenses
except as otherwise indicated.
Registration fee....................................... $62,500
Fees and expenses of accountants....................... 10,000
Fees and expenses of legal counsel..................... 60,000
Fees and expenses of Trustee and counsel............... 6,000
Printing and engraving expenses........................ 1,500
Miscellaneous.......................................... 10,000
-------
Total......................................... $150,000
=======
Item 15. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation and Bylaws provide that
the Company will indemnify each of its directors and officers to the full extent
permitted by the laws of the State of Delaware and may indemnify certain other
persons as authorized by the Delaware General Corporation Law (the "GCL").
Section 145 of the GCL provides as follows:
"(a) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed actions, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that the 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, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person 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 reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person 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 reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have the power 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 or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the 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, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnify for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of undertaking
by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by former directors and officers or other employees
and agents may be so paid upon such terms and conditions, if any, as the
corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power 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, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to `the corporation'
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to `other enterprises'
shall include employee benefit plans; references to `fines' shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to `serving at the request of the corporation' shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner `not
opposed to the best interests of the corporation' as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees)."
The Company's Certificate of Incorporation and Bylaws also limit the
personal liability of directors to the Company and its stockholders for monetary
damages resulting from certain breaches of the directors' fiduciary duties. The
Company's Certificate of Incorporation provides as follows:
"No Director of the Corporation shall be personally
liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a
Director, except for liability (i) for any breach of
the Director's duty of loyalty to the corporation or
its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174
of the GCL, or (iv) for any transaction from which
the Director derived any improper personal benefit.
If the GCL is amended . . . to authorize corporate
action further eliminating or limiting the personal
liability of directors, then the liability of a
Director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the GCL,
as so amended."
The Company maintains directors' and officers' liability insurance.
Item 16. Exhibits.
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated herein by reference to a prior
filing of the Company under the Securities Act or the Exchange Act as indicated
in parenthesis:
Exhibit Description
- ------- -----------
4.1 Amended and Restated Certificate of Incorporation of the Company,
including Exhibit A thereto containing the Certificate of
Designation of Series A Junior Participating Preferred Stock
(incorporated by reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the year ended December 31, 2000).*
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the Company's Annual Report on Form 10-K for the year ended
December 31, 2000).*
4.3 Specimen of Class B common stock certificate of the Company
(incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-1 (File No. 33-68870)).*
4.4 Certificate of Designation of Series B Preferred Stock
(incorporated by reference to Exhibit 3.1(b) to the Company's
Annual Report on Form 10-K for the year ended December 31,
2000).*
4.5 Form of Series B Preferred Stock Certificate (incorporated by
reference to Exhibit 3.1(c) to the Company's Annual Report on
Form 10-K for the year ended December 31, 2000).*
4.6 Certificate of Trust of Continental Airlines Finance Trust II,
dated November 6, 2000, filed with the Secretary of State of the
State of Delaware.*
4.7 Declaration of Trust of Continental Airlines Finance Trust II,
dated as November 6, 2000, by the Company, as trustee.*
4.8 Amended and Restated Declaration of Trust of Continental Airlines
Finance Trust II, dated as of November 10, 2000 among the
Company, as sponsor, Wilmington Trust Company, as property
trustee, and the administrative trustees.*
4.9 Indenture for the 6% Convertible Junior Subordinated Debentures,
dated as of November 10, 2000 between the Company, as issuer, and
Wilmington Trust Company, as trustee.*
4.10 Form of Continental Airlines Finance Trust 6% Convertible
Preferred Securities, Term Income Deferrable Equity Securities
(TIDES)SM (included in Exhibit 4.8).*
4.11 Form of Continental Airlines, Inc. 6% Convertible Junior
Subordinated Debentures due 2030 (included in Exhibit 4.9).*
4.12 Convertible Preferred Securities Guarantee, dated as of November
10, 2000, between the Company, as guarantor, and Wilmington Trust
Company, as guarantee trustee.*
4.13 Common Securities Guarantee, dated as of November 10, 2000, by
the Company, as guarantor.*
4.14 Amended and Restated Rights Agreement, dated as of November 15,
2000, between the Company and ChaseMellon Shareholder Services,
LLC, including as Exhibit B the Form of Right Certificate
(incorporated by reference to Exhibit 99.11 to the Company's
Current Report on Form 8-K dated November 15, 2000).*
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton as to the validity
of the securities registered.*
5.2 Opinion of Morris, Nichols, Arsht & Tunnell as to certain matters
of Delaware law.*
8.1 Opinion of Cleary, Gottlieb, Steen & Hamilton as to certain tax
matters.*
10.1 Registration Rights Agreement, dated as of November 10, 2000, by
and among Continental Airlines Finance Trust II, the Company and
Credit Suisse First Boston Corporation and UBS Warburg LLC.*
12.1 Statement Regarding Computation of Ratios.*
23.1 Consent of Ernst & Young LLP, independent accountants.
23.2 Consent of Cleary, Gottlieb, Steen & Hamilton (included in the
opinions filed as Exhibits 5.1 and 8.1).*
23.3 Consent of Morris, Nichols, Arsht & Tunne (included in the
opinion filed as Exhibit 5.2).*
24.1 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as indenture
trustee under the Indenture.*
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as property
trustee under the Amended and Restated Declaration of Trust.*
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as preferred
guarantee trustee under the Preferred Securities Guarantee.*
- --------------------
* Previously filed.
Item 17. Undertakings
(a) The undersigned registrants 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20% 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 the
registration statement or any material change to such information
in the registration statement;
provided, however, that the undertakings set forth in clauses (i) and
(ii) above do not apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those clauses is contained in periodic
reports filed with or furnished to the Securities and Exchange
Commission by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To deliver or cause to be delivered with the prospectus,
to each person to whom the prospectus is sent or given, the latest
annual report, to security holders that Is incorporated by reference in
the prospectus and furnished pursuant to and meeting the requirements
of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934;
and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus
is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim
financial information.
(4) 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 in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrants certify that they have reasonable grounds to believe that they
meet all of the requirements for filing on Form S-3 and have duly caused this
registration statement to be signed on their behalf by the undersigned,
thereunto duly authorized in the City of Houston, State of Texas, March 15,
2001.
CONTINENTAL AIRLINES, INC.
By: /s/ Lawrence W. Kellner
----------------------------------
Name: Lawrence W. Kellner
Title: Executive Vice President
and Chief Financial Officer
CONTINENTAL AIRLINES FINANCE TRUST II
By: /s/ Gerald Laderman
----------------------------------
Name: Gerald Laderman
Title: Administrative Trustee
Pursuant to the requirements of the Securities Act of 1933, this
amended registration statement has been signed by the following persons in the
capacities indicated, on March 15, 2001.
SIGNATURE TITLE
* Chairman of the Board, Chief Executive
----------------------- Officer (Principal Executive Officer)
Gordon M. Bethune and Director
* Executive Vice President and Chief
----------------------- Financial Officer
Lawrence W. Kellner (Principal Financial Officer)
*
----------------------- Staff Vice President and Controller
Chris T. Kenny (Principal Accounting Officer)
*
----------------------- Director
Thomas J. Barrack, Jr.
*
----------------------- Director
David Bonderman
*
----------------------- President, Chief Operating Officer and
Gregory D. Brenneman Director
*
----------------------- Director
Kirbyjon H. Caldwell
*
----------------------- Director
Patrick Foley
*
----------------------- Director
Douglas H. McCorkindale
*
----------------------- Director
George G. C. Parker
*
----------------------- Director
Richard W. Pogue
*
----------------------- Director
William S. Price III
*
----------------------- Director
Donald L. Sturm
*
----------------------- Director
Karen Hastie Williams
*
----------------------- Director
Charles A. Yamarone
*By: /s/ Scott R. Peterson
-----------------------
Name: Scott R. Peterson
Attorney in Fact
Pursuant to the requirements of the Securities Act of 1933, this
amended registration statement has been signed by the following persons in the
capacities indicated, on March 15, 2001.
SIGNATURE TITLE
/s/ Gerald Laderman
------------------------ Administrative Trustee
Gerald Laderman
/s/ Lawrence W. Kellner
------------------------ Administrative Trustee
Lawrence W. Kellner
EXHIBIT INDEX
Exhibit Description
- ------- -----------
4.1 Amended and Restated Certificate of Incorporation of the Company,
including Exhibit A thereto containing the Certificate of
Designation of Series A Junior Participating Preferred Stock
(incorporated by reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the year ended December 31, 2000).*
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the Company's Annual Report on Form 10-K for the year ended
December 31, 2000).*
4.3 Specimen of Class B common stock certificate of the Company
(incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-1 (File No 33-68870)).*
4.4 Certificate of Designation of Series B Preferred Stock
(incorporated by reference to Exhibit 3.1(b) to the Company's
Annual Report on Form 10-K for the year ended December 31,
2000).*
4.5 Form of Series B Preferred Stock Certificate (incorporated by
reference to Exhibit 3.1(c) to the Company's Annual Report on
Form 10-K for the year ended December 31, 2000).*
4.6 Certificate of Trust of Continental Airlines Finance Trust II,
dated November 6, 2000, filed with the Secretary of State of the
State of Delaware.*
4.7 Declaration of Trust of Continental Airlines Finance Trust II,
dated as November 6, 2000, by the Company, as trustee.*
4.8 Amended and Restated Declaration of Trust of Continental Airlines
Finance Trust II, dated as of November 10, 2000 among the
Company, as sponsor, Wilmington Trust Company, as property
trustee, and the administrative trustees.*
4.9 Indenture for the 6% Convertible Junior Subordinated Debentures,
dated as of November 10, 2000 between the Company, as issuer, and
Wilmington Trust Company, as trustee.*
4.10 Form of Continental Airlines Finance Trust 6% Convertible
Preferred Securities, Term Income Deferrable Equity Securities
(TIDES)SM (included in Exhibit 4.8).*
4.11 Form of Continental Airlines, Inc. 6% Convertible Junior
Subordinated Debentures due 2030 (included in Exhibit 4.9).*
4.12 Convertible Preferred Securities Guarantee, dated as of November
10, 2000, between the Company, as guarantor, and Wilmington Trust
Company, as guarantee trustee.*
4.13 Common Securities Guarantee, dated as of November 10, 2000, by
the Company, as guarantor.*
4.14 Amended and Restated Rights Agreement, dated as of November 15,
2000, between the Company and ChaseMellon Shareholder Services,
LLC, including as Exhibit B the Form of Right Certificate
(incorporated by reference to Exhibit 99.11 to the Company's
Current Report on Form 8-K dated November 15, 2000).*
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton as to the validity
of the securities registered.*
5.2 Opinion of Morris, Nichols, Arsht & Tunnell as to certain matters
of Delaware law.*
8.1 Opinion of Cleary, Gottlieb, Steen & Hamilton as to certain tax
matters.*
10.1 Registration Rights Agreement, dated as of November 10, 2000, by
and among Continental Airlines Finance Trust II, the Company and
Credit Suisse First Boston Corporation and UBS Warburg LLC.*
12.1 Statement Regarding Computation of Ratios.*
23.1 Consent of Ernst & Young LLP, independent accountants.
23.2 Consent of Cleary, Gottlieb, Steen & Hamilton (included in the
opinions filed as Exhibits 5.1 and 8.1).*
23.3 Consent of Morris, Nichols, Arsht & Tunnell (included in the
opinion filed as Exhibit 5.2).*
24.1 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as indenture
trustee under the Indenture.*
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as property
trustee under the Amended and Restated Declaration of Trust.*
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as preferred
guarantee trustee under the Preferred Securities Guarantee.*
- --------------------
* Previously filed.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Continental
Airlines, Inc. (the "Company") for the registration of its 5,000,000 6%
Convertible Preferred Securities, Term Income Deferrable Equity Securities
(TIDES) and to the incorporation by reference therein of our report dated
January 16, 2001 (except Note 16, as to which the date is January 22, 2001) with
respect to the consolidated financial statements and our report dated January
16, 2001 with respect to the financial statement schedule of the Company
included in its Annual Report (Form 10-K) for the year ended December 31, 2000,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Houston, Texas
March 9, 2001