As
filed with the Securities and Exchange Commission on January 22,
2010
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CAMDEN
NATIONAL CORPORATION
(Exact
Name of Registrant as Specified in Its Charter)
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Maine
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01-0413282
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
Number)
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2
Elm Street
Camden,
Maine 04843
(207) 236-8821
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
Gregory
A. Dufour, President and Chief Executive Officer
Camden
National Corporation
2
Elm Street
Camden,
Maine 04843
(207) 236-8821
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent
For Service)
Copies
to:
William
P. Mayer, Esq.
Paul
W. Lee, Esq.
Goodwin
Procter LLP
Exchange
Place
Boston,
Massachusetts 02109-2881
(617) 570-1000
Approximate
date of commencement of proposed sale to the public: From time to time after the
effective date of this Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. ¨
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: x
If this
Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) 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 registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act,
check the following box. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
Accelerated Filer ¨
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Accelerated
Filer x
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Non-Accelerated
Filer ¨
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Smaller
Reporting Company ¨
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities to be
Registered
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Amount
to
be
Registered (1)
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Proposed Maximum
Offering
Price
Per
Unit (1)
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Proposed Maximum
Aggregate
Offering
Price
(2)
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Amount
of
Registration
Fee
(3)
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Common
Stock (4)
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Senior
Debt Securities and Subordinated Debt Securities (4)
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Warrants
(5)
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Total
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$ |
100,000,000 |
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100 |
% |
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$ |
100,000,000 |
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$ |
7,130 |
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(1)
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Pursuant to General Instruction
II (D) of Form S-3, such indeterminate number or principal amount of
Common Stock, Debt Securities (including Senior Debt Securities and
Subordinated Debt Securities) and Warrants of Camden National Corporation
not to exceed $100,000,000 maximum aggregate offering price exclusive of
accrued interest and dividends, if any. The proposed maximum offering
price per unit will be determined from time to time in connection with the
issuance of the securities registered
hereunder.
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(2)
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Estimated solely for purposes of
computing the registration fee and exclusive of accrued interest and
dividends, if any.
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(3)
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The registration fee has been
calculated in accordance with Rule 457(o) under the Securities
Act.
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(4)
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Shares of Common Stock may be
issuable upon conversion of Debt Securities registered hereunder. No
separate consideration will be received for such Common
Stock.
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(5)
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Warrants will represent rights to
purchase Common Stock registered hereby. Because the Warrants will provide
a right only to purchase such Securities offered hereunder, no additional
registration fee is
required.
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Investing
in the Securities involves risks. See “Risk Factors” on page
4.
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 Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Neither
the Securities and Exchange Commission nor any state securities commission or
regulatory authority has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
Subject
to Completion, dated January 22, 2010
PROSPECTUS
$100,000,000
Camden
National Corporation
Senior
Debt Securities
Subordinated
Debt Securities
Common
Stock
Warrants
We may
offer and sell from time to time, in one or more series, up to $100,000,000 of
the securities listed above in connection with this prospectus.
This
prospectus and applicable prospectus supplement may be used in the initial sale
of the securities. In addition, we or any affiliate controlled by us may use
this prospectus and applicable prospectus supplement in a market-making
transaction involving the securities after the initial sale. These transactions
may be executed at negotiated prices that are related to market prices at the
time of purchase or sale, or at other prices. We and our affiliates may act as
principal or agent in these transactions.
This
prospectus provides you with a general description of the securities that we may
offer and sell from time to time. Each time we sell securities we will provide a
prospectus supplement that will contain specific information about the terms of
the securities and sale and may add to or update the information in this
prospectus. You should read this prospectus and any prospectus supplement
carefully before you invest in our securities.
Our
common stock is traded on the NASDAQ Global Select Market (“NASDAQ”) under the
trading symbol “CAC.” The last reported sale price of the common
stock on January 20, 2010 was $31.54 per share.
THE
SECURITIES WILL BE OUR EQUITY SECURITIES OR OUR UNSECURED OBLIGATIONS AND WILL
NOT BE DEPOSIT ACCOUNTS OF ANY BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION OR
REGULATORY AUTHORITY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
This
prospectus may not be used to sell securities unless accompanied by the
applicable prospectus supplement.
The date
of this prospectus
is ,
20 .
You
should rely only on the information contained in this prospectus. No dealer,
salesperson or other person is authorized to give information that is not
contained in this prospectus. This prospectus is not an offer to sell nor is it
seeking an offer to buy these securities in any jurisdiction where the offer or
sale is not permitted. The information contained in this prospectus is correct
only as of the date of this prospectus, regardless of the time of the delivery
of this prospectus or any sale of these securities.
TABLE
OF CONTENTS
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Page
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PROSPECTUS
SUMMARY
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1
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WHERE
YOU CAN FIND MORE INFORMATION
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1
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INFORMATION
INCORPORATED BY REFERENCE
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1
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FORWARD-LOOKING
STATEMENTS
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2
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RATIOS
OF EARNINGS TO FIXED CHARGES
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3
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RISK
FACTORS
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4
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HOW
WE INTEND TO USE THE PROCEEDS
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4
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SUPERVISION
AND REGULATION
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4
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DESCRIPTION
OF THE SECURITIES
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10
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DESCRIPTION
OF DEBT SECURITIES
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10
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DESCRIPTION
OF COMMON STOCK
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21
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DESCRIPTION
OF WARRANTS
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22
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HOW
WE PLAN TO OFFER AND SELL THE SECURITIES
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23
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EXPERTS
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25
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LEGAL
MATTERS
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25
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PROSPECTUS
SUMMARY
About
this Prospectus
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission (the “SEC”) utilizing a shelf registration process.
Under this shelf registration process, we may sell any combination
of:
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senior debt
securities;
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subordinated debt
securities;
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in one or
more offerings up to a total dollar amount of $100,000,000. This prospectus
provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that specific offering and
include a discussion of any risk factors or other special considerations that
apply to those securities. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with the additional
information described under the heading “Where You Can Find More
Information.”
You
should read this entire prospectus, including the information incorporated by
reference, before making an investment decision. Unless the context otherwise
requires, all references to “we,” “us,” “our,” “our company,” “the Company,” or
similar expressions in this prospectus refer to Camden National Corporation, a
Maine corporation, and its subsidiaries.
About
Camden National Corporation
The
Company is a publicly-held bank holding company registered under the Bank
Holding Company Act of 1956, as amended, and is subject to supervision,
regulation and examination by the Board of Governors of the Federal Reserve
System. We are incorporated under the laws of the State of Maine and
headquartered in Camden, Maine. The Company, as a diversified financial services
provider, pursues the objective of achieving long-term sustainable growth by
balancing growth opportunities against profit, while mitigating risks inherent
in the financial services industry. The primary business of the Company and its
subsidiaries is to attract deposits from consumer, institutional, municipal,
non-profit and commercial customers and to extend loans to consumer,
institutional, non-profit and commercial customers. We make available our
commercial and consumer banking products and services through our subsidiary,
Camden National Bank (“CNB”), and our brokerage and insurance services through
Acadia Financial Consultants, which operates as a division of CNB. We also
provide wealth management, trust and employee benefit products and services
through our other subsidiary, Acadia Trust, N.A., a federally regulated,
non-depository trust company headquartered in Portland, Maine. In addition to
serving as a holding company, we provide managerial, financial management, risk
management, operational, human resource, marketing and technology services to
our subsidiaries.
Our
principal executive offices are located at Two Elm Street, Camden, Maine 04843,
and our telephone number is (207) 236-8821. You can find additional
information about the Company in our filings with the SEC referenced in the
section in this document titled “Where You Can Find More Information”
below.
WHERE
YOU CAN FIND MORE INFORMATION
We have
filed with the SEC a registration statement under the Securities Act of 1933, as
amended (the “Securities Act”), that registers the offer and sale of the
securities offered by this prospectus. This prospectus is part of the
registration statement, but the registration statement, including the
accompanying exhibits included or incorporated by reference therein, contains
additional relevant information about us. The rules and regulations of the SEC
allow us to omit certain information included in the registration statement from
this prospectus.
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document we file at the SEC’s Public
Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may call the
SEC at 1-800-SEC-0330 for further information on the operation of the Public
Reference Room. Our SEC filings are also available to the public from the SEC’s
website at http://www.sec.gov and on our
website at http://www.camdennational.com.
We have included the SEC’s web address and our web address as inactive textual
references only. Except as specifically incorporated by reference in this
prospectus, information on those websites is not part of this
prospectus.
INFORMATION
INCORPORATED BY REFERENCE
The SEC
allows us to incorporate by reference the information and reports we file with
it which means that we can disclose important information to you by referring
you to these documents. Our SEC file number is 001-13227. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede the information already incorporated by reference. We are
incorporating by reference the documents listed below, which we have already
filed with the SEC, and any future filings we make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange
Act”), (1) on or after the date of filing of the registration statement
containing this prospectus and prior to the effectiveness of the registration
statement and (2) on or after the date of this prospectus until the earlier
of the date on which all of the securities registered hereunder have been sold
or this registration statement has been withdrawn shall be deemed incorporated
by reference in this prospectus and to be a part of this prospectus from the
date of filing of those documents:
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Annual Report on Form 10-K for
the year ended December 31, 2008, filed on March 13,
2009;
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Quarterly Report on Form 10-Q for
the quarter ended March 31, 2009, filed on May 11,
2009;
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Quarterly Report on Form 10-Q for
the quarter ended June 30, 2009, filed on August 7,
2009;
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Quarterly Report on Form 10-Q for
the quarter ended September 30, 2009, filed on October 30,
2009;
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Current Reports on Form 8-K,
filed on March 31, 2009; April 14, 2009; June 30, 2009; July 2, 2009;
September 29, 2009 and December 29,
2009;
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Portions
of our Proxy Statement filed on March 13, 2009 that have been incorporated
by reference into our Annual Report on Form
10-K;
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Annual Report on Form 11-K, filed
on June 26, 2009; and
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The description of our common
stock contained in our registration statement on Form 8-A/A, filed on
December 31, 2007, including any amendment or report filed for the purpose
of updating such
description.
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You
may request a copy of these filings, and any exhibits we have specifically
incorporated by reference as an exhibit in this prospectus, at no cost by
writing or telephoning us at the following: Camden National Corporation, 2 Elm
Street, Camden, Maine 04843, Attention: Chance Farago. Our telephone number is
(207) 236-8821.
This
prospectus is part of a registration statement we filed with the SEC. We have
specifically incorporated exhibits by reference into this registration
statement. You should read the exhibits carefully for provisions that may be
important to you.
You
should rely only on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. We have not authorized anyone to
provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or in the documents incorporated by
reference is accurate as of any date other than the date on the front of this
prospectus or those documents.
Any
statement contained in a document incorporated by reference in this prospectus
shall be deemed to be modified or superseded for purposes of this prospectus to
the extent that a statement contained in this prospectus, or in any other
document filed later that is also incorporated in this prospectus by reference,
modifies or supersedes the statement. Any statement so modified or superseded
shall not be deemed to constitute a part of this prospectus except as so
modified or superseded. The information relating to us contained in this
prospectus should be read together with the information contained in any
prospectus supplement and in the documents incorporated in this prospectus and
any prospectus supplement by reference.
FORWARD-LOOKING
STATEMENTS
Certain
statements contained in this prospectus, in any related prospectus supplement
and in information incorporated by reference into this prospectus and any
related prospectus supplement that are not historical facts may contain certain
statements that may be considered forward-looking statements under the Private
Securities Litigation Reform Act of 1995. The Company may make written or oral
forward-looking statements in other documents we file with the SEC, in our
annual reports to shareholders, in press releases and other written materials
and in oral statements made by our officers, directors or employees. You can
identify forward-looking statements by the use of the words “believe,” “expect,”
“anticipate,” “intend,” “estimate,” “assume,” “will,” “should” and other
expressions which predict or indicate future events or trends and which do not
relate to historical matters. You should not rely on forward-looking statements,
because they involve known and unknown risks, uncertainties and other factors,
some of which are beyond the control of the Company. These risks, uncertainties
and other factors may cause the actual results, performance or achievements of
the Company to be materially different from the anticipated future results,
performance or achievements expressed or implied by the forward-looking
statements.
Some of
the factors that might cause these differences include, but are not limited to,
the following:
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general, national, regional or
local economic conditions which are less favorable than anticipated,
including fears of global recession and continued sub-prime and credit
issues, impacting the performance of the Company’s investment portfolio,
quality of credits or the overall demand for
services;
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changes in loan default and
charge-off rates which could affect the allowance for loan
losses;
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declines in the equity and
financial markets which could result in impairment of
goodwill;
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reductions in deposit levels
could necessitate increased and/or higher cost borrowing to fund loans and
investments;
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declines in mortgage loan
refinancing, equity loan and line of credit activity which could reduce
net interest and non-interest
income;
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changes in the domestic interest
rate environment and inflation, as substantially all of the Company’s
assets and virtually all of the liabilities are monetary in
nature;
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changes in the carrying value of
investment securities and other
assets;
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further actions by the U.S.
government and Treasury Department, similar to the Federal Home Loan
Mortgage Corporation conservatorship, which could have a negative impact
on the Company’s investment portfolio and
earnings;
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misalignment of the Company’s
interest-bearing assets and
liabilities;
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increases in loan repayment rates
affecting interest income and the value of mortgage servicing rights;
and
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changing business, banking, or
regulatory conditions or policies, or new legislation affecting the
financial services industry, that could lead to changes in the competitive
balance among financial institutions, restrictions on bank activities,
changes in costs (including deposit insurance premiums), increased
regulatory scrutiny, declines in consumer confidence in depository
institutions, or changes in the secondary market for bank loan and other
products;
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changes in accounting rules,
Federal and State laws, Internal Revenue Service regulations, and other
regulations and policies governing financial holding companies and their
subsidiaries which may impact our ability to take appropriate action to
protect our financial interests in certain loan
situations.
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These
forward-looking statements were based on information, plans and estimates at the
date of this registration statement, and we do not promise to update any
forward-looking statements to reflect changes in underlying assumptions or
factors, new information, future events or other changes.
RATIOS
OF EARNINGS TO FIXED CHARGES
The
following table sets forth our consolidated ratios of earnings to fixed charges
for the periods shown. We have no preferred shares outstanding and
paid no dividends on preferred shares during the periods
indicated. Therefore the ratios of earnings to fixed charges and
preferred dividends are the same as the ratios of earnings to fixed charges
presented below.
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Years
Ended December 31,
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Nine
Months
Ended
September 30,
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2008
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Ratios
of earnings to fixed charges
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Including
interest on deposits
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1.36 |
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1.50 |
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1.55 |
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1.90 |
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2.20 |
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1.82 |
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Excluding
interest on deposits
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1.82 |
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2.34 |
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2.63 |
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3.39 |
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4.11 |
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2.89 |
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For the
purpose of computing the ratios of earnings to fixed charges, earnings represent
income before income taxes and change in accounting principle, plus fixed
charges. Fixed charges include all interest expense and the proportion deemed
representative of the interest factor of rent expense. These ratios are
presented both including and excluding interest on deposits.
RISK
FACTORS
You
should carefully consider the risks described in the documents incorporated by
reference in this prospectus before making an investment decision. These risks
are not the only ones facing our company. Additional risks not presently known
to us or that we currently deem immaterial may also impair our business
operations. Our business, financial condition or results of operations could be
materially adversely affected by the materialization of any of these risks. The
trading price of our securities could decline due to the materialization of any
of these risks, and you may lose all or part of your investment. This prospectus
and the documents incorporated herein by reference also contain forward-looking
statements that involve risks and uncertainties. Actual results could differ
materially from those anticipated in these forward-looking statements as a
result of certain factors, including the risks described in the documents
incorporated herein by reference, including (i) our Annual Reports on
Form 10-K, (ii) our Quarterly Reports on Form 10-Q and (iii) documents
we file with the SEC after the date of this prospectus and which are deemed
incorporated by reference in this prospectus.
HOW
WE INTEND TO USE THE PROCEEDS
Unless
otherwise set forth in any prospectus supplement, we intend to use the net
proceeds from the sale of the securities for general corporate
purposes. General corporate purposes may include, among other
purposes, contribution to the capital of CNB, to support its lending and
investing activities; the repayment of our debt; repurchase of our outstanding
common stock; possible acquisitions of other institutions, branches or other
lines of business, if opportunities for such transactions become available; and
investments in activities which are permitted for bank holding
companies.
Pending
such uses, we may temporarily invest the net proceeds. The precise amounts and
timing of the application of proceeds will depend upon our funding requirements
and the availability of other funds. Except as mentioned in any prospectus
supplement, specific allocations of the proceeds to such purposes will not have
been made at the date of that prospectus supplement.
Based
upon our historical and anticipated future growth and our financial needs, we
may engage in additional financings of a character and amount that we determine
as the need arises.
SUPERVISION
AND REGULATION
The
business in which the Company and its subsidiaries are engaged is subject to
extensive supervision, regulation and examination by various federal regulatory
agencies (the “Agencies”), including the Board of Governors of the Federal
Reserve System (the “FRB”) and the Office of the Comptroller of the Currency
(the “OCC”). CNB, our bank subsidiary, is also subject to regulation under the
laws of the State of Maine and the jurisdiction of the Maine Bureau of Financial
Institutions. State and federal banking laws generally have as their
principal objective either the maintenance of the safety and soundness of
financial institutions and the federal deposit insurance system or the
protection of consumers or classes of consumers, and depositors in particular,
rather than the specific protection of shareholders. Set forth below is a brief
description of certain laws and regulations that relate to the regulation of the
Company and its banking subsidiaries. In response to the deterioration of the
financial markets in 2008, comprehensive financial regulatory reform proposals
are pending in both the U.S. House of Representatives and the U.S. Senate which
may be adopted in whole or in part in 2010. These proposals would
restructure the regulatory regime for financial institutions and impose
significant additional requirements and restrictions on banks and bank holding
companies. To the extent the following material describes statutory or
regulatory provisions; it is qualified in its entirety by reference to the
particular statute or regulation. Any change in applicable law or regulation may
have a material effect on the Company’s business and operations, as well as
those of its subsidiaries.
Bank Holding
Company — Activities and Other Limitations. As a
registered bank holding company (“BHC”), the Company is subject to regulation
under the Bank Holding Company Act of 1956, as amended (the “BHCA”). In
addition, the Company is subject to examination and supervision by the FRB, and
is required to file reports with, and provide additional information requested
by, the FRB. The enforcement powers available to federal banking regulators
include, among other things, the ability to assess civil money penalties, to
issue cease and desist or removal orders and to initiate injunctive actions
against banking organizations and institution-affiliated parties. In general, these
enforcement actions may be initiated for violations of law and regulations and
unsafe or unsound practices. Other actions or inactions may provide the basis
for enforcement action, including misleading or untimely reports filed with
regulatory authorities. Under certain circumstances, federal and state law
requires public disclosure and reports of certain criminal offenses and also
enforcement actions by the Agencies.
Under the
BHCA, the Company may not generally engage in activities or acquire more than 5%
of any class of voting securities of any company which is not a bank or BHC, and
may not engage directly or indirectly in activities other than those of banking,
managing or controlling banks or furnishing services to its subsidiary banks,
except that it may engage in and may own shares of companies engaged in certain
activities the FRB determined to be so closely related to banking or managing
and controlling banks as to be a proper incident thereto. However, a BHC that
has elected to be treated as a “financial holding company” (“FHC”) may engage in
activities that are financial in nature or incidental or complementary to such
financial activities, as determined by the FRB alone, or together with the
Secretary of the Department of the Treasury. The Company has not elected FHC
status. Under certain circumstances, the Company may be required to give notice
to or seek approval of the FRB before engaging in activities other than
banking.
The
Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994
(“Riegle-Neal”) permits adequately or well capitalized and adequately or well
managed BHCs, as determined by the FRB, to acquire banks in any state subject to
certain concentration limits and other conditions. Riegle-Neal also generally
authorizes the interstate merger of banks. In addition, among other things,
Riegle-Neal permits banks to establish new branches on an interstate basis
provided that the law of the host state specifically authorizes such action.
However, as a BHC, we are required to obtain prior FRB approval before acquiring
more than 5% of a class of voting securities, or substantially all of the
assets, of a BHC, bank or savings association.
The
Change in Bank Control Act prohibits a person or group of persons from acquiring
“control” of a BHC, such as the Company, unless the FRB has been notified and
has not objected to the transaction. Under a rebuttable presumption established
by the FRB, the acquisition of 10% or more of a class of voting securities of a
BHC with a class of securities registered under Section 12 of the Exchange Act
would, under the circumstances set forth in the presumption, constitute
acquisition of control of the BHC. In addition, a company is required to obtain
the approval of the FRB under the BHCA before acquiring 25% (5% in the case of
an acquirer that is a BHC) or more of any class of outstanding voting securities
of a BHC, or otherwise obtaining control or a “controlling influence” over that
BHC. In September 2008, the FRB released guidance on minority investment in
banks which relaxed the presumption of control for investments of greater than
10% of a class of outstanding voting securities of a BHC in certain instances
discussed in the guidance.
Activities and Investments of
National Banking Associations. National banking associations
must comply with the National Bank Act and the regulations promulgated
thereunder by the OCC, which limit the activities of national banking
associations to those that are deemed to be part of, or incidental to, the
“business of banking.” Activities that are part of, or incidental to, the
business of banking include taking deposits, borrowing and lending money and
discounting or negotiating paper. Subsidiaries of national banking associations
generally may only engage in activities permissible for the parent national
bank.
Bank Holding Company Support of
Subsidiary Banks. Under FRB policy, a BHC is expected to act
as a source of financial and managerial strength to each of its subsidiaries and
to commit resources to their support. This support may be required at times when
the BHC may not have the resources to provide it. Similarly, under the
cross-guarantee provisions of Federal Deposit Insurance Act, as amended (the
“FDIA”), the Federal Deposit Insurance Corporation (the “FDIC”) can hold any
FDIC-insured depository institution liable for any loss suffered or anticipated
by the FDIC in connection with (1) the “default” of a commonly controlled
FDIC-insured depository institution; or (2) any assistance provided by the FDIC
to a commonly controlled FDIC-insured depository institution “in danger of
default.”
Transactions with
Affiliates. Under Sections 23A and 23B of the Federal Reserve
Act and Regulation W promulgated thereunder, there are various legal
restrictions on the extent to which a BHC and its nonbank subsidiaries may
borrow, obtain credit from or otherwise engage in “covered transactions” with
its FDIC-insured depository institution subsidiaries. Such borrowings and other
covered transactions by an insured depository institution subsidiary (and its
subsidiaries) with its nondepository institution affiliates are limited to the
following amounts: in the case of one such affiliate, the aggregate amount of
covered transactions of the insured depository institution and its subsidiaries
cannot exceed 10% of the capital stock and surplus of the insured depository
institution; and in the case of all affiliates, the aggregate amount of covered
transactions of the insured depository institution and its subsidiaries cannot
exceed 20% of the capital stock and surplus of the insured depository
institution. “Covered transactions” are defined by statute for these purposes to
include a loan or extension of credit to an affiliate, a purchase of or
investment in securities issued by an affiliate, a purchase of assets from an
affiliate unless exempted by the FRB, the acceptance of securities issued by an
affiliate as collateral for a loan or extension of credit to any person or
company, or the issuance of a guarantee, acceptance, or letter of credit on
behalf of an affiliate. Covered transactions are also subject to certain
collateral security requirements. Further, a BHC and its subsidiaries are
prohibited from engaging in certain tying arrangements in connection with any
extension of credit, lease or sale of property of any kind, or furnishing of any
service.
Declaration of
Dividends. According to its Policy Statement on Cash Dividends
Not Fully Covered by Earnings (the “FRB Dividend Policy”), the FRB considers
adequate capital to be critical to the health of individual banking
organizations and to the safety and stability of the banking system. Of course,
one of the major components of the capital adequacy of a bank or a BHC is the
strength of its earnings, and the extent to which its earnings are retained and
added to capital or paid to shareholders in the form of cash dividends.
Accordingly, the FRB Dividend Policy suggests that banks and BHCs generally
should not maintain their existing rate of cash dividends on common stock unless
the organization’s net income available to common shareholders over the past
year has been sufficient to fully fund the dividends, and the prospective rate
of earnings retention appears consistent with the organization’s capital needs,
asset quality and overall financial condition. The FRB Dividend Policy
reiterates the FRB’s belief that a BHC should not maintain a level of cash
dividends to its shareholders that places undue pressure on the capital of bank
subsidiaries, or that can be funded only through additional borrowings or other
arrangements that may undermine the BHC’s ability to serve as a source of
strength.
Under
Maine law, a corporation’s board of directors may declare, and the corporation
may pay, dividends on its outstanding shares, in cash or other property,
generally only out of the corporation’s unreserved and unrestricted earned
surplus, or out of the unreserved and unrestricted net earnings of the current
fiscal year and the next preceding fiscal year taken as a single period, except
under certain circumstances, including when the corporation is insolvent, or
when the payment of the dividend would render the corporation insolvent or when
the declaration would be contrary to the corporation’s charter.
Dividend
payments by national banks, such as CNB, also are subject to certain
restrictions. For instance, national banks generally may not declare a dividend
in excess of the bank’s undivided profits and, absent OCC approval, if the total
amount of dividends declared by the national bank in any calendar year exceeds
the total of the national bank’s retained net income of that year to date
combined with its retained net income for the preceding two years. National
banks also are prohibited from declaring or paying any dividend if, after making
the dividend, the national bank would be considered “undercapitalized” (defined
by reference to other OCC regulations). Federal bank regulatory agencies have
authority to prohibit banking institutions from paying dividends if those
agencies determine that, based on the financial condition of the bank, such
payment would constitute an unsafe or unsound practice. The FDIC has the
authority to use its enforcement powers to prohibit a bank from paying dividends
if, in its opinion, the payment of dividends would constitute an unsafe or
unsound practice. Federal law also prohibits the payment of dividends by a bank
that will result in the bank failing to meet its applicable capital requirements
on a pro forma basis.
Capital
Requirements. The FRB and the FDIC have issued substantially
similar risk-based and leverage capital guidelines applicable to United States
banking organizations. In addition, the Agencies may from time to time require
that a banking organization maintain capital above the minimum levels, whether
because of its financial condition or actual or anticipated growth.
The FRB
risk-based guidelines define a three-tier capital framework. Tier 1 capital
includes common shareholders’ equity and qualifying preferred stock, less
goodwill and other adjustments. Tier 2 capital consists of preferred stock not
qualifying as Tier 1 capital, mandatory convertible debt, limited amounts of
subordinated debt, other qualifying term debt and the allowance for loan losses
up to 1.25% of risk-weighted assets. Tier 3 capital includes subordinated debt
that is unsecured, fully paid, has an original maturity of at least two years,
is not redeemable before maturity without prior approval by the FRB and includes
a lock-in clause precluding payment of either interest or principal if the
payment would cause the issuing bank’s risk-based capital ratio to fall or
remain below the required minimum. The sum of Tier 1 and Tier 2 capital less
investments in unconsolidated subsidiaries represents qualifying total capital.
Risk-based capital ratios are calculated by dividing Tier 1 and total capital by
risk-weighted assets. Assets and off-balance sheet exposures are assigned to one
of four categories of risk-weights, based primarily on relative credit risk. The
minimum Tier 1 capital ratio is 4% and the minimum total capital ratio is
8%.
The
leverage ratio is determined by dividing Tier 1 capital by adjusted average
total assets. Although the stated minimum ratio is 3%, as a matter of policy the
actual minimum is 100 to 200 basis points above 3%. Banking organizations must
maintain a ratio of at least 5% to be classified as “well
capitalized.”
The
Federal Deposit Insurance Corporation Improvement Act of 1991 (the “FDICIA”),
among other things, identifies five capital categories for insured depository
institutions (well capitalized, adequately capitalized, undercapitalized,
significantly undercapitalized and critically undercapitalized) and requires the
Agencies to implement systems for “prompt corrective action” for insured
depository institutions that do not meet minimum capital requirements within
such categories. The FDICIA imposes progressively more restrictive constraints
on operations, management and capital distributions, depending on the category
in which an institution is classified. Failure to meet the capital guidelines
could also subject a banking institution to capital raising requirements. An
“undercapitalized” bank must develop a capital restoration plan and its parent
holding company must guarantee that bank’s compliance with the plan. The
liability of the parent holding company under any such guarantee is limited to
the lesser of 5% of the bank’s assets at the time it became “undercapitalized”
or the amount needed to comply with the plan. Furthermore, in the event of the
bankruptcy of the parent holding company, such guarantee would take priority
over the parent’s general unsecured creditors. In addition, the FDICIA requires
the Agencies to prescribe certain non-capital standards for safety and soundness
relating generally to operations and management, asset quality and executive
compensation, and permits regulatory action against a financial institution that
does not meet such standards.
The
Agencies have adopted substantially similar regulations that define the five
capital categories identified by the FDICIA using the total risk-based capital,
Tier 1 risk-based capital and leverage capital ratios as the relevant capital
measures. Such regulations establish various degrees of corrective action to be
taken when an institution is considered undercapitalized. Under the regulations,
a bank generally shall be deemed to be:
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“well capitalized” if it has a
total risk-based capital ratio of 10.0% or greater, has a Tier I
risk-based capital ratio of 6.0% or more, has a leverage ratio of 5.0% or
greater and is not subject to any written agreement, order or capital
directive or prompt corrective action
directive;
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“adequately capitalized” if it
has a total risk-based capital ratio of 8.0% or greater, a Tier I
risk-based capital ratio of 4.0% or more, and a leverage ratio of 4.0% or
greater (3.0% under certain circumstances) and does not meet the
definition of a “well capitalized
bank;”
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“undercapitalized” if it has a
total risk-based capital ratio that is less than 8.0%, a Tier I risk-based
capital ratio that is less than 4.0% or a leverage ratio that is less than
4.0% (3.0% under certain
circumstances);
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“significantly undercapitalized”
if it has a total risk-based capital ratio that is less than 6.0%, a Tier
I risk-based capital ratio that is less than 3.0% or a leverage ratio that
is less than 3.0%; and
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“critically undercapitalized” if
it has a ratio of tangible equity to total assets that is equal to or less
than 2.0%.
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Regulators
also must take into consideration (1) concentrations of credit risk; (2)
interest rate risk (when the interest rate sensitivity of an institution’s
assets does not match the sensitivity of its liabilities or its
off-balance-sheet position); and (3) risks from non-traditional activities, as
well as an institution’s ability to manage those risks, when determining the
adequacy of an institution’s capital. This evaluation will be made as a part of
the institution’s regular safety and soundness examination. In addition, the
Company, and any bank with significant trading activity, must incorporate a
measure for market risk into their regulatory capital calculations.
The
Agencies may raise capital requirements applicable to banking organizations
beyond current levels. The Company is unable to predict whether higher capital
requirements will be imposed and, if so, at what levels and on what schedules.
Therefore, the Company cannot predict what effect such higher requirements may
have on it.
An
institution generally must file a written capital restoration plan which meets
specified requirements with an appropriate federal banking agency within 45 days
of the date that the institution receives notice or is deemed to have notice
that it is undercapitalized, significantly undercapitalized or critically
undercapitalized. An institution, which is required to submit a capital
restoration plan, must concurrently submit a performance guaranty by each
company that controls the institution. A critically undercapitalized institution
generally is to be placed in conservatorship or receivership within 90 days
unless the federal banking agency determines to take such other action (with the
concurrence of the FDIC) that would better protect the deposit insurance fund.
Immediately upon becoming undercapitalized, the institution becomes subject to
the provisions of Section 38 of the FDIA, including for example, (i) restricting
payment of capital distributions and management fees, (ii) requiring that the
appropriate federal banking agency monitor the condition of the institution and
its efforts to restore its capital, (iii) requiring submission of a capital
restoration plan, (iv) restricting the growth of the institution’s assets and
(v) requiring prior approval of certain expansion proposals.
Certain
Other Regulatory Requirements
Customer Information
Security. The Agencies have adopted final guidelines for
establishing standards for safeguarding nonpublic personal information about
customers. These guidelines implement provisions of the Gramm-Leach-Bliley Act
of 1999 (the “GLBA”), which establishes a comprehensive framework to permit
affiliations among commercial banks, insurance companies, securities firms, and
other financial service providers by revising and expanding the BHCA framework.
Specifically, the Information Security Guidelines established by the GLBA
require each financial institution, under the supervision and ongoing oversight
of its Board of Directors or an appropriate committee thereof, to develop,
implement and maintain a comprehensive written information security program
designed to ensure the security and confidentiality of customer information, to
protect against anticipated threats or hazards to the security or integrity of
such information and to protect against unauthorized access to or use of such
information that could result in substantial harm or inconvenience to any
customer. The federal banking regulators have issued guidance for banks on
response programs for unauthorized access to customer information. This
guidance, among other things, requires notice to be sent to customers whose
“sensitive information” has been compromised if unauthorized use of this
information is “reasonably possible.” A majority of states have enacted
legislation concerning breaches of data security and Congress is considering
federal legislation that would require consumer notice of data security
breaches.
Privacy. The GLBA
requires financial institutions to implement policies and procedures regarding
the disclosure of nonpublic personal information about consumers to
nonaffiliated third parties. In general, the statute requires financial
institutions to explain to consumers their policies and procedures regarding the
disclosure of such nonpublic personal information, and, unless otherwise
required or permitted by law, financial institutions are prohibited from
disclosing such information except as provided in their policies and
procedures.
USA PATRIOT
Act. The USA PATRIOT Act of 2001, designed to deny terrorists
and others the ability to obtain anonymous access to the U.S. financial system,
has significant implications for depository institutions, broker-dealers, mutual
funds, insurance companies and businesses of other types involved in the
transfer of money. The USA PATRIOT Act, together with the implementing
regulations of various Agencies, has caused financial institutions, including
banks, to adopt and implement additional, or amend existing, policies and
procedures with respect to, among other things, anti-money laundering
compliance, suspicious activity and currency transaction reporting, customer
identity verification and customer risk analysis. The statute and its underlying
regulations also permit information sharing for counter-terrorist purposes
between federal law enforcement agencies and financial institutions, as well as
among financial institutions, subject to certain conditions, and require the FRB
(and other Agencies) to evaluate the effectiveness of an applicant and a target
institution in combating money laundering activities when considering
applications filed under Section 3 of the BHCA or under the Bank Merger Act. In
2006, final regulations under the USA PATRIOT Act were issued requiring
financial institutions, including the Company and its subsidiaries, to take
additional steps to monitor their correspondent banking and private banking
relationships as well as their relationships with “shell banks.” Management
believes that the Company is in compliance with all the requirements prescribed
by the USA PATRIOT Act and all applicable final implementing
regulations.
Deposit
Insurance. CNB pays deposit insurance premiums to the FDIC
based on an assessment rate established by the FDIC. For most banks and savings
associations, including CNB, FDIC rates depend upon a combination of CAMELS
component ratings and financial ratios. CAMELS ratings reflect the applicable
bank regulatory agency’s evaluation of the financial institution’s capital,
asset quality, management, earnings, liquidity and sensitivity to risk. For
large banks and savings associations that have long-term debt issuer ratings,
assessment rates depend upon such ratings, and CAMELS component ratings. For
institutions which are in the lowest risk category, assessment rates varied
initially from 10 to 16 basis points per $100 of insured
deposits.
In
November 2009, the FDIC issued a final rule that mandated that insured
depository institutions prepay their quarterly risk-based assessments to the
FDIC for the fourth quarter of 2009 and for all of 2010, 2011, and 2012 on
December 30, 2009. The amount of CNB’s prepaid deposit premium was
$8.7 million. Each institution, including CNB, recorded the entire
amount of its prepayment as an asset (a prepaid expense). The prepaid
assessments bear a 0% risk weight for risk-based capital
purposes. The prepaid assessment base for CNB was calculated using
its third quarter 2009 assessment rate (using its CAMELS rating on that
date). That assessment base will be adjusted quarterly with an
estimated 5% annual growth in the assessment base through the end of
2012. The prepaid assessment rate for the fourth quarter of 2009 and
for 2010 is based on CNB’s total base assessment rate for the third quarter of
2009, adjusted as if the assessment rate in effect on September 30, 2009 had
been in effect for the entire third quarter. Further, the prepaid
assessment rate for 2011 and 2012 is equal to the adjusted third quarter 2009
total base assessment rate plus 3 basis points. As of December 31,
2009, and each quarter thereafter, CNB will record an expense for its regular
quarterly assessment for the quarter and a corresponding credit to the prepaid
assessment until the asset is exhausted. The FDIC will not refund or
collect additional prepaid assessments because of a decrease or growth in
deposits over the next three years. However, should the prepaid
assessment not be exhausted after collection of the amount due on June 30, 2013,
the remaining amount of the prepayment will be returned to CNB. In
2008, the level of FDIC deposit insurance was temporarily increased from
$100,000 to $250,000 per depositor and the increased level of insurance coverage
will remain in effect through December 31, 2013.
The FDIC
has the power to adjust deposit insurance assessment rates at any
time. We cannot predict whether, as a result of the adverse change in
U.S. economic conditions and, in particular, declines in the value of real
estate in certain markets served by CNB, the FDIC will in the future further
increase deposit insurance assessment levels.
Temporary Liquidity Guarantee
Program. CNB is participating in the Transaction Account
Guarantee Program (“TAGP”) component of the FDIC’s Temporary Liquidity Guarantee
Program (“TLGP”). Through the TAGP, the FDIC will provide unlimited deposit
insurance coverage for all noninterest-bearing transaction accounts through June
30, 2010. This includes traditional non-interest bearing checking accounts,
certain types of attorney trust accounts and NOW accounts as long as the
interest rate does not exceed 0.50%. The TAGP carries an annualized 10 basis
point assessment, paid quarterly, on any deposit amounts exceeding the existing
deposit insurance limit of $250,000. This assessment shall be in addition to an
institution’s risk-based assessment noted above.
The Community Reinvestment
Act. The Community Reinvestment Act (the “CRA”) requires
lenders to identify the communities served by the institution’s offices and
other deposit taking facilities and to make loans and investments and provide
services that meet the credit needs of these communities. Regulatory agencies
examine banks and rate such institutions’ compliance with the CRA as
“Outstanding,” “Satisfactory,” “Needs to Improve” or “Substantial
Noncompliance.” Failure of an institution to receive at least a “Satisfactory”
rating could inhibit such institution or its holding company from undertaking
certain activities, including engaging in activities newly permitted as a
financial holding company under the GLBA and acquisitions of other financial
institutions. The FRB must take into account the record of performance of banks
in meeting the credit needs of the entire community served, including low-and
moderate-income neighborhoods. CNB has achieved a rating of “Outstanding” on its
most recent examination.
Regulation R. The
FRB approved Regulation R implementing the bank broker push out provisions under
Title II of the GLBA. The GLBA provided 11 exceptions from the definition of
“broker” in the Exchange Act that permit banks not registered as broker-dealers
with the SEC to effect securities transactions under certain conditions.
Regulation R, which was issued jointly by the SEC and the FRB, implements
certain of these exceptions. CNB began compliance with Regulation R on the first
day of the bank’s fiscal quarter starting after September 30, 2008. The FRB and
the SEC have stated that they will jointly issue any interpretations or
no-action letters/guidance regarding Regulation R and consult with each other
and the appropriate federal banking agency with respect to formal enforcement
actions pursuant to Regulation R.
Regulatory Enforcement
Authority. The enforcement powers available to the Agencies
include, among other things, the ability to assess civil money penalties, to
issue cease and desist or removal orders and to initiate injunctive actions
against banking organizations and institution-affiliated parties. In general,
these enforcement actions may be initiated for violations of law and regulations
and unsafe or unsound practices. Other actions or inactions may provide the
basis for enforcement action, including misleading or untimely reports filed
with regulatory authorities. Under certain circumstances, federal and state law
requires public disclosure and reports of certain criminal offenses and also
final enforcement actions by the Agencies.
Identity Theft Red
Flags. The Agencies jointly issued final rules and guidelines
in 2007 implementing Section 114 (“Section 114”) of the Fair and Accurate Credit
Transactions Act of 2003 (the “FACT Act”) and final rules implementing section
315 of the FACT Act (“Section 315”). Section 114 requires CNB to develop and
implement a written Identity Theft Prevention Program (the “Program”) to detect,
prevent and mitigate identity theft in connection with the opening of certain
accounts or certain existing accounts. Section 114 also requires credit and
debit card issuers to assess the validity of notifications of changes of address
under certain circumstances. The Agencies issued joint rules under Section 315
that provide guidance regarding reasonable policies and procedures that a user
of consumer reports must employ when a consumer reporting agency sends the user
a notice of address discrepancy. These final rules and guidelines became
effective on January 1, 2008, and CNB began complying with the rules by November
1, 2008.
Fair Credit Reporting Affiliate
Marketing Regulations. In 2007, the Agencies published final
rules to implement the affiliate marketing provisions in Section 214 of the FACT
Act, which amends the Fair Credit Reporting Act. The final rules generally
prohibit a person from using information received from an affiliate to make a
solicitation for marketing purposes to a consumer, unless the consumer is given
notice and a reasonable opportunity and a reasonable and simple method to opt
out of the making of such solicitations. These rules became effective on January
1, 2008, and the Company began complying with the rules by October 1,
2008.
DESCRIPTION
OF THE SECURITIES
We may
offer, from time to time, in one or more offerings, up to $100,000,000 of the
following securities:
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senior debt
securities;
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subordinated debt
securities;
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The
aggregate initial offering price of the offered securities that we may issue
will not exceed $100,00,000. If we issue debt securities at a discount from
their principal amount, then, for purposes of calculating the aggregate initial
offering price of the offered securities issued under this prospectus, we will
include only the initial offering price of the debt securities and not the
principal amount of the debt securities.
This
prospectus contains a summary of the general terms of the various securities
that we may offer. The prospectus supplement relating to any particular
securities offered will describe the specific terms of the securities, which may
be in addition to or different from the general terms summarized in this
prospectus. Because the summary in this prospectus and in any prospectus
supplement does not contain all of the information that you may find useful, you
should read the documents relating to the securities that are described in this
prospectus or in any applicable prospectus supplement. Please read “Where You
Can Find More Information” to find out how you can obtain a copy of those
documents.
The
applicable prospectus supplement will also contain the terms of a given
offering, the initial offering price and our net proceeds. Where applicable, a
prospectus supplement will also describe any material United States federal
income tax consequences relating to the securities offered and indicate whether
the securities offered are or will be quoted or listed on any quotation system
or securities exchange.
DESCRIPTION
OF DEBT SECURITIES
This
prospectus describes the general terms and provisions of the debt securities we
may issue. When we offer to sell a particular series of debt securities, we will
describe the specific terms of the securities in a supplement to this
prospectus, including any additional covenants or changes to existing covenants
relating to such series. The prospectus supplement will also indicate whether
the general terms and provisions described in this prospectus apply to a
particular series of debt securities. You should read the actual indenture if
you do not fully understand a term or the way we use it in this
prospectus.
We may
offer senior debt securities or subordinated debt securities. Each series of
debt securities may have different terms. The senior debt securities
will be issued under an indenture, as amended or supplemented from time to time,
dated as of a date prior to such issuance, between us and the trustee identified
in the applicable prospectus supplement. We will refer to any such indenture
throughout this prospectus as the “senior indenture.” Any subordinated debt
securities will be issued under a separate indenture, as amended or supplemented
from time to time, dated as of a date prior to such issuance, between us and the
trustee identified in the applicable prospectus supplement. We will refer to any
such indenture throughout this prospectus as the “subordinated indenture” and to
a trustee under any senior or subordinated indenture as the “trustee.” The
senior indenture and the subordinated indenture are sometimes collectively
referred to in this prospectus as the “indentures.” The indentures will be
subject to and governed by the Trust Indenture Act of 1939, as amended. We
included copies of the forms of the indentures as exhibits to our registration
statement and they are incorporated into this prospectus by
reference.
If we
issue debt securities at a discount from their principal amount, then, for
purposes of calculating the aggregate initial offering price of the offered
securities issued under this prospectus, we will include only the initial
offering price of the debt securities and not the principal amount of the debt
securities.
We have
summarized below the material provisions of the indentures and the debt
securities, or indicated which material provisions will be described in the
related prospectus supplement. The prospectus supplement relating to any
particular securities offered will describe the specific terms of the
securities, which may be in addition to or different from the general terms
summarized in this prospectus. Because the summary in this prospectus and in any
prospectus supplement does not contain all of the information that you may find
useful, you should read the documents relating to the securities that are
described in this prospectus or in any applicable prospectus supplement. Please
read “Where You Can Find More Information” to find out how you can obtain a copy
of those documents. Except as otherwise indicated, the terms of the indentures
are identical. As used under this caption, the term “debt securities” includes
the debt securities being offered by this prospectus and all other debt
securities issued by us under the indentures.
Because
we are a holding company, our rights and the rights of our creditors, including
the holders of the debt securities offered in this prospectus, to participate in
the assets of any subsidiary during its liquidation or reorganization, will be
subject to the prior claims of the subsidiary’s creditors, unless we are
ourselves a creditor with recognized claims against the subsidiary. Any capital
loans that we make to any of our subsidiaries would be subordinate in right of
payment to deposits and to other indebtedness of the subsidiary. Claims from
creditors (other than us), on the subsidiaries, may include long-term and
medium-term debt and substantial obligations related to deposit liabilities,
federal funds purchased, securities sold under repurchase agreements, and other
short-term borrowings.
General
The
indentures:
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do not limit the amount of debt
securities that we may
issue;
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allow us to issue debt securities
in one or more series;
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do not require us to issue all of
the debt securities of a series at the same
time;
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allow us to reopen a series to
issue additional debt securities without the consent of the debt
securityholders of such series;
and
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provide that the debt securities
will be unsecured, except as may be set forth in the applicable prospectus
supplement.
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Unless we
give you different information in the applicable prospectus supplement, the
senior debt securities will be unsubordinated obligations and will rank equally
with all of our other unsecured and unsubordinated indebtedness. Payments on the
subordinated debt securities will be subordinated to the prior payment in full
of all of our senior indebtedness, as described under “Description of the Debt
Securities—Subordination” and in the applicable prospectus
supplement.
Each
indenture provides that we may, but need not, designate more than one trustee
under an indenture. Any trustee under an indenture may resign or be removed and
a successor trustee may be appointed to act with respect to the series of debt
securities administered by the resigning or removed trustee. If two or more
persons are acting as trustees with respect to different series of debt
securities, each trustee shall be a trustee of a trust under the applicable
indenture separate and apart from the trust administered by any other trustee.
Except as otherwise indicated in this prospectus, any action described in this
prospectus to be taken by each trustee may be taken by each trustee with respect
to, and only with respect to, the one or more series of debt securities for
which it is trustee under the applicable indenture.
The
prospectus supplement for each offering will provide the following terms, where
applicable:
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the title of the debt securities
and whether they are senior or
subordinated;
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the aggregate principal amount of
the debt securities being offered, the aggregate principal amount of the
debt securities outstanding as of the most recent practicable date and any
limit on their aggregate principal amount, including the aggregate
principal amount of debt securities
authorized;
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the
price at which the debt securities will be issued, expressed as a
percentage of the principal and, if other than the principal amount
thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity thereof or, if applicable, the
portion of the principal amount of such debt securities that is
convertible into common stock or the method by which any such portion
shall be determined;
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if
convertible, the terms on which such debt securities are convertible,
including the initial conversion price or rate and the conversion period
and any applicable limitations on the ownership or transferability of
common stock received on
conversion;
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the date or dates, or the method
for determining the date or dates, on which the principal of the debt
securities will be payable;
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the fixed or variable interest
rate or rates at which the debt securities will bear interest, if any, or
the method by which the interest rate or rates is
determined;
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the date or dates, or the method
for determining the date or dates, from which interest will
accrue;
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the dates on which interest will
be payable;
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the record dates for interest
payment dates, or the method by which we will determine those
dates;
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the persons to whom interest will
be payable;
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the basis upon which interest
will be calculated if other than that of a 360-day year of twelve 30-day
months;
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any make-whole amount, which is
the amount in addition to principal and interest that is required to be
paid to the holder of a debt security as a result of any optional
redemption or accelerated payment of such debt security, or the method for
determining the make-whole
amount;
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the place or places where the
principal of, and any premium (or make-whole amount) and interest on, the
debt securities will be
payable;
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where the debt securities may be
surrendered for registration of transfer or
exchange;
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where notices or demands to or
upon us in respect of the debt securities and the applicable indenture may
be served;
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the times, prices and other terms
and conditions upon which we may redeem the debt
securities;
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any obligation we have to redeem,
repay or purchase the debt securities pursuant to any sinking fund or
analogous provision or at the option of holders of the debt securities,
and the times and prices at which we must redeem, repay or purchase the
debt securities as a result of such an
obligation;
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the currency or currencies in
which the debt securities are denominated and payable if other than United
States dollars, which may be a foreign currency or units of two or more
foreign currencies or a composite currency or currencies and the terms and
conditions relating thereto, and the manner of determining the equivalent
of such foreign currency in United States
dollars;
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if other than denominations of
$1,000 or an even multiple of $1,000, the denominations in which the debt
securities will be issued;
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whether the principal of, and any
premium (or make-whole amount) or interest on, the debt securities of the
series are to be payable, at our election or at the election of a holder,
in a currency or currencies other than that in which the debt securities
are denominated or stated to be payable, and other related terms and
conditions;
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whether the amount of payments of
principal of, and any premium (or make-whole amount) or interest on, the
debt securities may be determined according to an index, formula or other
method and how such amounts will be
determined;
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if less than the principal amount
of the debt securities, the portion of the principal amount of the debt
securities payable upon a declaration of the acceleration of the maturity
of such debt securities;
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whether the debt securities will
be in registered form, bearer form or both and (1) if in registered form,
the person to whom any interest shall be payable, if other than the person
in whose name the security is registered at the close of business on the
regular record date for such interest, or (2) if in bearer form, the
manner in which, or the person to whom, any interest on the security shall
be payable if otherwise than upon presentation and surrender upon
maturity;
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any restrictions applicable to
the offer, sale or delivery of securities in bearer form and the terms
upon which securities in bearer form of the series may be exchanged for
securities in registered form of the series and vice versa if permitted by
applicable laws and
regulations;
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whether any debt securities of
the series are to be issuable initially in temporary global form and
whether any debt securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global security may or shall be
required to exchange their interests for other debt securities of the
series, and the manner in which interest shall be
paid;
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the identity of the depositary
for securities in registered form, if such series are to be issuable as a
global security;
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the date as of which any debt
securities in bearer form or in temporary global form shall be dated if
other than the original issuance date of the first security of the series
to be issued;
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the applicability, if any, of the
defeasance and covenant defeasance provisions described in this prospectus
or in the applicable
indenture;
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whether and under what
circumstances we will pay any additional amounts on the debt securities in
respect of any tax, assessment or governmental charge and, if so, whether
we will have the option to redeem the debt securities in lieu of making
such a payment;
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the circumstances, if any, in the
applicable prospectus supplement, under which beneficial owners of
interests in the global security may obtain definitive debt securities and
the manner in which payments on a permanent global debt security will be
made if any debt securities are issuable in temporary or permanent global
form;
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any provisions granting special
rights to holders of securities upon the occurrence of such events as
specified in the applicable prospectus
supplement;
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if the debt securities of such
series are to be issuable in definitive form only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or
conditions;
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the name of the applicable
trustee and the nature of any material relationship with us or any of our
affiliates, and the percentage of debt securities of the class necessary
to require the trustee to take
action;
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any deletions from, modifications
of, or additions to our events of default or covenants and any change in
the right of any trustee or any of the holders to declare the principal
amount of any of such debt securities due and payable;
and
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any other terms of such debt
securities not inconsistent with the provisions of the applicable
indenture.
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We may
issue debt securities at a discount below their principal amount and provide for
less than the entire principal amount thereof to be payable upon declaration of
acceleration of the maturity of the debt securities. We refer to any such debt
securities throughout this prospectus as “original issue discount securities.”
The applicable prospectus supplement will describe the United States federal
income tax consequences and other relevant considerations applicable to original
issue discount securities.
Except as
described under “—Merger, Consolidation or Sale of Assets” or as may be set
forth in any prospectus supplement, the debt securities will not contain any
provisions that (1) would limit our ability to incur indebtedness or (2) would
afford holders of debt securities protection in the event of (a) a highly
leveraged or similar transaction involving us or (b) a change of control or
reorganization, restructuring, merger or similar transaction involving us that
may adversely affect the holders of the debt securities. In the future, we may
enter into transactions, such as the sale of all or substantially all of our
assets or a merger or consolidation, that may have an adverse effect on our
ability to service our indebtedness, including the debt securities, by, among
other things, substantially reducing or eliminating our assets.
We will
provide you with more information in the applicable prospectus supplement
regarding any deletions, modifications, or additions to the events of default or
covenants that are described below, including any addition of a covenant or
other provision providing event risk or similar protection.
Payment
Unless we
give you different information in the applicable prospectus supplement, the
principal of, and any premium (or make-whole amount) and interest on, any series
of the debt securities will be payable at the corporate trust office of the
trustee. We will provide you with the address of the trustee in the applicable
prospectus supplement. We may also pay interest by mailing a check to the
address of the person entitled to it as it appears in the applicable register
for the debt securities or by wire transfer of funds to that person at an
account maintained within the United States.
All
monies that we pay to a paying agent or a trustee for the payment of the
principal of, and any premium (or make-whole amount) or interest on, any debt
security will be repaid to us if unclaimed at the end of two years after the
obligation underlying payment becomes due and payable. After funds have been
returned to us, the holder of the debt security may look only to us for payment,
without payment of interest for the period we hold the funds.
Denomination,
Interest, Registration and Transfer
Unless
otherwise described in the applicable prospectus supplement, the debt securities
of any series will be issuable in denominations of $1,000 and integral multiples
of $1,000.
Subject
to the limitations imposed upon debt securities that are evidenced by a
computerized entry in the records of a depository company rather than by
physical delivery of a note, a holder of debt securities of any series
may:
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exchange them for any authorized
denomination of other debt securities of the same series and of a like
aggregate principal amount and kind upon surrender of such debt securities
at the corporate trust office of the applicable trustee or at the office
of any transfer agent that we designate for such purpose;
and
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surrender them for registration
of transfer or exchange at the corporate trust office of the applicable
trustee or at the office of any transfer agent that we designate for such
purpose.
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Every
debt security surrendered for registration of transfer or exchange must be duly
endorsed or accompanied by a written instrument of transfer satisfactory to the
applicable trustee or transfer agent. Payment of a service charge will not be
required for any registration of transfer or exchange of any debt securities,
but either the trustee or we may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. If in
addition to the applicable trustee, the applicable prospectus supplement refers
to any transfer agent initially designated by us for any series of debt
securities, we may at any time rescind the designation of any such transfer
agent or approve a change in the location through which any such transfer agent
acts, except that we will be required to maintain a transfer agent in each place
of payment for such series. We may at any time designate additional transfer
agents for any series of debt securities.
Neither
we nor any trustee shall be required to:
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issue,
register the transfer of, or exchange debt securities of any series during
a period beginning at the opening of business 15 days before the day that
the notice of redemption of any debt securities selected for redemption is
mailed and ending at the close of business on the day of such
mailing;
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register the transfer of or
exchange any debt security, or portion thereof, so selected for
redemption, in whole or in part, except the unredeemed portion of any debt
security being redeemed in part;
or
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issue, register the transfer of
or exchange any debt security that has been surrendered for repayment at
the option of the holder, except the portion, if any, of such debt
security not to be so
repaid.
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Merger,
Consolidation or Sale of Assets
The
indentures provide that we may, without the consent of the holders of any
outstanding debt securities, (1) consolidate with, (2) sell, lease or convey all
or substantially all of our assets to, or (3) merge with or into, any other
entity provided that:
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either we are the continuing
entity, or the successor entity, if other than us, assumes the obligations
(A) to pay the principal of, and any premium (or make whole amount) and
interest on, all of the debt securities and (B) to duly perform and
observe all of the covenants and conditions contained in each
indenture;
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after
giving effect to the transaction, there is no event of default under the
indentures and no event which, after notice or the lapse of time, or both,
would become such an event of default, occurs and continues;
and
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an officers’ certificate and
legal opinion covering such conditions are delivered to each applicable
trustee.
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Covenants
Below is
a summary of certain covenants we are required to observe under the
indentures.
Payment of Principal, Premium and
Interest. The indentures require us, with respect to each series of debt
securities, to duly and punctually pay the principal of (and premium or
make-whole amounts, if any) and interest on the debt securities of that series
in accordance with the terms of the debt securities and the applicable
indenture.
Existence. Except as
permitted under “—Merger, Consolidation or Sale of Assets,” the indentures
require us to do or cause to be done all things necessary to preserve and keep
in full force and effect our existence, rights and franchises. However, the
indentures do not require us to preserve any right or franchise if we determine
that any right or franchise is no longer desirable in the conduct of our
business.
Payment of Taxes and Other
Claims. The indentures require us to pay, discharge or cause to be paid
or discharged, before they become delinquent (1) all taxes, assessments and
governmental charges levied or imposed on us, our affiliates or our affiliates’
income, profits or property, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon our property or the
property of our subsidiaries. However, we will not be required to pay, discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
Provision of Financial
Information. The indentures require us to (1) within 15 days of each of
the respective dates by which we are required to file our annual reports,
quarterly reports and other documents with the SEC, file with the trustee copies
of the annual report, quarterly report and other documents that we file with the
SEC under Section 13 or 15(d) of the Exchange Act, (2) file with the trustee and
the SEC any additional information, documents and reports regarding compliance
by us with the conditions and covenants of the indentures, as required, (3)
within 30 days after the filing with the trustee, mail to all holders of debt
securities, as their names and addresses appear in the applicable register for
such debt securities, without cost to such holders, summaries of any documents
and reports required to be filed by us pursuant to (1) and (2) above, and (4)
supply, promptly upon written request and payment of the reasonable cost of
duplication and delivery, copies of such documents to any prospective
holder.
Additional Covenants. The
applicable prospectus supplement will set forth any additional covenants
applicable to us relating to any series of debt securities.
Events
of Default, Notice and Waiver
Unless
the applicable prospectus supplement states otherwise, when we refer to “events
of default” as defined in the indentures with respect to any series of debt
securities, we mean:
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default in the payment of any
installment of interest on any debt security of such series continuing for
30 days;
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default in the payment of
principal of (or any premium or make-whole amount, if any, on) any debt
security of such series at its
maturity;
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default in deposit of any sinking
fund payment as required for any debt security of such
series;
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default in the performance or
breach of any of our covenants or warranties contained in the applicable
indenture continuing for 60 days after written notice to us as provided in
the applicable indenture, but not of a covenant added to the indenture
solely for the benefit of a series of debt securities issued thereunder
other than such series;
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a
default under any bond, debenture, note, mortgage, indenture or
instrument:
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(1)
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having
an aggregate principal amount of at least $30,000,000;
or
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(2)
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under
which there may be issued, secured or evidenced any existing or later
created indebtedness for money borrowed by us or our subsidiaries, if we
are directly responsible or liable as obligor or
guarantor,
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if the
default results in the indebtedness becoming or being declared due and payable
prior to the date it otherwise would have, without such indebtedness having been
discharged, or such acceleration having been rescinded or annulled, within 30
days after notice to the issuing company specifying such default. Such notice
shall be given to us by the trustee, or to us and the trustee by the holders of
at least 10% in principal amount of the outstanding debt securities of that
series. The written notice specifying such default and requiring us to cause
such indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and shall state that such notice is a “Notice of Default” under such
indenture;
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bankruptcy,
insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Company or any significant subsidiary of the
Company; and
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any other event of default
provided with respect to a particular series of debt
securities.
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When we
use the term “significant subsidiary,” we refer to the meaning ascribed to such
term in Rule 1-02 of Regulation S-X promulgated under the Securities Act of
1933, as amended, or Securities Act.
If an event of default occurs and is
continuing with respect to debt securities of any series outstanding, then the
applicable trustee or the holders of 25% or more in principal amount of the
outstanding debt securities of that series will have the right to declare the
principal amount of all the debt securities of that series to be due and payable
immediately. If the debt securities of that series are original issue discount
securities or indexed securities, then the applicable trustee or the holders of
25% or more in principal amount of the outstanding debt securities of that
series will have the right to declare the portion of the principal amount as may
be specified in the terms thereof to be due and payable. However, at any time
after such a declaration of acceleration has been made, but before a judgment or
decree for payment of the money due has been obtained by the applicable trustee,
the holders of at least a majority in principal amount of outstanding debt
securities of such series or of all debt securities then outstanding under the
applicable indenture may rescind and annul such declaration and its consequences
if:
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we have paid or deposited with
the applicable trustee all required payments of the principal, any premium
(or make-whole amount), and interest, plus applicable fees, expenses,
disbursements and advances of the applicable trustee;
and
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all events of default, other than
the non-payment of accelerated principal, or a specified portion thereof,
and any premium (or make-whole amount), have been cured or
waived.
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The
indentures also provide that the holders of at least a majority in principal
amount of the outstanding debt securities of any series or of all debt
securities then outstanding under the applicable indenture may on behalf of all
holders waive any past default with respect to such series and its consequences,
except a default:
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in
the payment of the principal, any premium (or make-whole amount) or
interest;
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in respect of a covenant or
provision contained in the applicable indenture that cannot be modified or
amended without the consent of the holders of the outstanding debt
security that is affected by the default;
or
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in respect of a covenant or
provision for the benefit or protection of the trustee, without its
express written consent.
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The
indentures require each trustee to give notice to the holders of debt securities
within 90 days of a default unless such default has been cured or waived.
However, the trustee may withhold notice if specified responsible officers of
such trustee consider such withholding to be in the interest of the holders of
debt securities. The trustee may not withhold notice of a default in the payment
of principal, any premium or interest on any debt security of such series or in
the payment of any sinking fund installment in respect of any debt security of
such series.
The
indentures provide that holders of debt securities of any series may not
institute any proceedings, judicial or otherwise, with respect to such indenture
or for any remedy under the indenture, unless the trustee fails to act for a
period of 60 days after the trustee has received a written request to institute
proceedings in respect of an event of default from the holders of 25% or more in
principal amount of the outstanding debt securities of such series, as well as
an offer of indemnity reasonably satisfactory to the trustee. However, this
provision will not prevent any holder of debt securities from instituting suit
for the enforcement of payment of the principal of, and any premium (or
make-whole amount) and interest on, such debt securities at the respective due
dates thereof.
The
indentures provide that, subject to provisions in each indenture relating to its
duties in the case of a default, a trustee has no obligation to exercise any of
its rights or powers at the request or direction of any holders of any series of
debt securities then outstanding under the indenture, unless the holders have
offered to the trustee reasonable security or indemnity. The holders of at least
a majority in principal amount of the outstanding debt securities of any series
or of all debt securities then outstanding under an indenture shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the applicable trustee, or of exercising any trust or power
conferred upon such trustee. However, a trustee may refuse to follow any
direction which:
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is in conflict with any law or
the applicable indenture;
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may involve the trustee in
personal liability; or
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may be unduly prejudicial to the
holders of debt securities of the series not joining the
proceeding.
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Within
120 days after the close of each fiscal year, we will be required to deliver to
each trustee a certificate, signed by one of our several specified officers
stating whether or not that officer has knowledge of any default under the
applicable indenture. If the officer has knowledge of any default, the notice
must specify the nature and status of the default.
Modification
of the Indentures
We may
modify and amend the indentures only with the consent of the affected holders of
at least a majority in principal amount of all outstanding debt securities
issued under the applicable indenture. However, no such modification or
amendment may, without the consent of the holders of the debt securities
affected by the modification or amendment:
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change the stated maturity of the
principal of, or any premium (or make-whole amount) on, or any installment
of principal of or interest on, any such debt
security;
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reduce the principal amount of,
the rate or amount of interest on or any premium (or make-whole amount)
payable on redemption of any such debt
security;
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reduce the amount of principal of
an original issue discount security that would be due and payable upon
declaration of acceleration of the maturity thereof or would be provable
in bankruptcy, or adversely affect any right of repayment of the holder of
any such debt security;
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change the place of payment or
the coin or currency for payment of principal of, or any premium (or
make-whole amount) or interest on, any such debt
security;
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impair the right to institute
suit for the enforcement of any payment on or with respect to any such
debt security;
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reduce the percentage in
principal amount of any outstanding debt securities necessary to modify or
amend the applicable indenture with respect to such debt securities, to
waive compliance with particular provisions thereof or defaults and
consequences thereunder or to reduce the quorum or voting requirements set
forth in the applicable indenture;
or
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modify any of the foregoing
provisions or any of the provisions relating to the waiver of particular
past defaults or covenants, except to increase the required percentage to
effect such action or to provide that some of the other provisions may not
be modified or waived without the consent of the holder of such debt
security.
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The
holders of a majority in aggregate principal amount of the outstanding debt
securities of each series may, on behalf of all holders of debt securities of
that series, waive, insofar as that series is concerned, our compliance with
material restrictive covenants of the applicable indenture.
We and
the trustee may make modifications and amendments of an indenture without the
consent of any holder of debt securities for any of the following
purposes:
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to evidence the succession of
another person to us as obligor under such
indenture;
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to add to our covenants for the
benefit of the holders of all or any series of debt securities or to
surrender any right or power conferred upon us in such
indenture;
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to add events of default for the
benefit of the holders of all or any series of debt
securities;
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to add or change any provisions
of an indenture (1) to change or eliminate restrictions on the payment of
principal of, or premium, or make whole amount, or interest on, debt
securities in bearer form, or (2) to permit or facilitate the issuance of
debt securities in uncertificated form, provided that such action shall
not adversely affect the interests of the holders of the debt securities
of any series in any material
respect;
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to change or eliminate any
provisions of an indenture, provided that any such change or elimination
shall become effective only when there are no debt securities outstanding
of any series created prior thereto which are entitled to the benefit of
such provision;
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to secure the debt
securities;
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to establish the form or terms of
debt securities of any
series;
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to provide for the acceptance of
appointment by a successor trustee or facilitate the administration of the
trusts under an indenture by more than one
trustee;
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to cure any ambiguity, defect or
inconsistency in an indenture, provided that such action shall not
adversely affect the interests of holders of debt securities of any series
issued under such indenture;
and
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to supplement any of the
provisions of an indenture to the extent necessary to permit or facilitate
defeasance and discharge of any series of such debt securities, provided
that such action shall not adversely affect the interests of the holders
of the outstanding debt securities of any
series.
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Voting
The
indentures provide that in determining whether the holders of the requisite
principal amount of outstanding debt securities of a series have given any
request, demand, authorization, direction, notice, consent or waiver under the
indentures or whether a quorum is present at a meeting of holders of debt
securities:
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the principal amount of an
original issue discount security that shall be deemed to be outstanding
shall be the amount of the principal thereof that would be due and payable
as of the date of such determination upon declaration of acceleration of
the maturity thereof;
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the principal amount of any debt
security denominated in a foreign currency that shall be deemed
outstanding shall be the United States dollar equivalent, determined on
the issue date for such debt security, of the principal amount or, in the
case of an original issue discount security, the United States dollar
equivalent on the issue date of such debt security of the amount
determined as provided in the preceding bullet
point;
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the principal amount of an
indexed security that shall be deemed outstanding shall be the principal
face amount of such indexed security at original issuance, unless
otherwise provided for such indexed security under such indenture;
and
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debt securities owned by us or
any other obligor upon the debt securities or by any affiliate of ours or
of such other obligor shall be
disregarded.
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The
indentures contain provisions for convening meetings of the holders of debt
securities of a series. A meeting will be permitted to be called at any time by
the applicable trustee, and also, upon request, by us or the holders of at least
25% in principal amount of the outstanding debt securities of such series, in
any such case upon notice given as provided in such indenture. Except for any
consent that must be given by the holder of each debt security affected by the
modifications and amendments of an indenture described above, any resolution
presented at a meeting or adjourned meeting duly reconvened at which a quorum is
present may be adopted by the affirmative vote of the holders of a majority of
the aggregate principal amount of the outstanding debt securities of that series
represented at such meeting.
Notwithstanding
the preceding paragraph, except as referred to above, any resolution relating to
a request, demand, authorization, direction, notice, consent, waiver or other
action that may be made, given or taken by the holders of a specified
percentage, which is less than a majority, of the aggregate principal amount of
the outstanding debt securities of a series may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of such specified percentage.
Any
resolution passed or decision taken at any properly held meeting of holders of
debt securities of any series will be binding on all holders of such series. The
quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be persons holding or representing a majority in principal amount
of the outstanding debt securities of a series. However, if any action is to be
taken relating to a consent or waiver which may be given by the holders of at
least a specified percentage in principal amount of the outstanding debt
securities of a series, the persons holding such percentage will constitute a
quorum.
Notwithstanding
the foregoing provisions, the indentures provide that if any action is to be
taken at a meeting with respect to any request, demand, authorization,
direction, notice, consent, waiver and other action that such indenture
expressly provides may be made, given or taken by the holders of a specified
percentage in principal amount of all outstanding debt securities affected by
such action, or of the holders of such series and one or more additional
series:
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there shall be no minimum quorum
requirement for such meeting;
and
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the principal amount of the
outstanding debt securities of such series that vote in favor of such
request, demand, authorization, direction, notice, consent, waiver or
other action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent, waiver or
other action has been made, given or taken under such
indenture.
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Subordination
Unless
otherwise provided in the applicable prospectus supplement, subordinated
securities will be subject to the following subordination
provisions.
Upon any
distribution to our creditors in a liquidation, dissolution or reorganization,
the payment of the principal of and interest on any subordinated securities will
be subordinated to the extent provided in the applicable indenture in right of
payment to the prior payment in full of all senior debt. However, our obligation
to make payments of the principal of and interest on such subordinated
securities otherwise will not be affected. No payment of principal or interest
will be permitted to be made on subordinated securities at any time if a default
on senior debt exists that permits the holders of such senior debt to accelerate
its maturity and the default is the subject of judicial proceedings or we
receive notice of the default. After all senior debt is paid in full and until
the subordinated securities are paid in full, holders of subordinated securities
will be subrogated to the rights of holders of senior debt to the extent that
distributions otherwise payable to holders of subordinated securities have been
applied to the payment of senior debt. The subordinated indenture will not
restrict the amount of senior debt or other indebtedness of the Company and its
subsidiaries. As a result of these subordination provisions, in the event of a
distribution of assets upon insolvency, holders of subordinated securities may
recover less, ratably, than our general creditors.
The term
“senior debt” will be defined in the applicable indenture as the principal of
and interest on, or substantially similar payments to be made by us in respect
of, other outstanding indebtedness, whether outstanding at the date of execution
of the applicable indenture or subsequently incurred, created or assumed. The
prospectus supplement may include a description of additional terms implementing
the subordination feature.
No
restrictions will be included in any indenture relating to subordinated
securities upon the creation of additional senior debt.
If this
prospectus is being delivered in connection with the offering of a series of
subordinated securities, the accompanying prospectus supplement or the
information incorporated in this prospectus by reference will set forth the
approximate amount of senior debt outstanding as of the end of our most recent
fiscal quarter.
Discharge,
Defeasance and Covenant Defeasance
Unless
otherwise indicated in the applicable prospectus supplement, the indentures
allow us to discharge our obligations to holders of any series of debt
securities issued under any indenture when:
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either (1) all securities of such
series have already been delivered to the applicable trustee for
cancellation; or (2) all securities of such series have not already been
delivered to the applicable trustee for cancellation but (a) have become
due and payable, (b) will become due and payable within one year, or (c)
if redeemable at our option, are to be redeemed within one year, and we
have irrevocably deposited with the applicable trustee, in trust, funds in
such currency or currencies, currency unit or units or composite currency
or currencies in which such debt securities are payable, an amount
sufficient to pay the entire indebtedness on such debt securities in
respect of principal and any premium (or make-whole amount) and interest
to the date of such deposit if such debt securities have become due and
payable or, if they have not, to the stated maturity or redemption
date;
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we have paid or caused to be paid
all other sums payable; and
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we have delivered to the trustee
an officers’ certificate and an opinion of counsel stating that the
conditions to discharging the debt securities have been
satisfied.
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Unless
otherwise indicated in the applicable prospectus supplement, the indentures
provide that, upon our irrevocable deposit with the applicable trustee, in
trust, of an amount, in such currency or currencies, currency unit or units or
composite currency or currencies in which such debt securities are payable at
stated maturity, or government obligations, or both, applicable to such debt
securities, which through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to pay
the principal of, and any premium (or make-whole amount) and interest on, such
debt securities, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor, we may elect either:
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to defease and be discharged from
any and all obligations with respect to such debt securities;
or
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to be released from our
obligations with respect to such debt securities under the applicable
indenture or, if provided in the applicable prospectus supplement, our
obligations with respect to any other covenant, and any omission to comply
with such obligations shall not constitute an event of default with
respect to such debt
securities.
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Notwithstanding
the above, we may not elect to defease and be discharged from the obligation to
pay any additional amounts upon the occurrence of particular events of tax,
assessment or governmental charge with respect to payments on such debt
securities and the obligations to register the transfer or exchange of such debt
securities, to replace temporary or mutilated, destroyed, lost or stolen debt
securities, to maintain an office or agency in respect of such debt securities,
or to hold monies for payment in trust.
The
indentures only permit us to establish the trust described in the paragraph
above if, among other things, we have delivered to the applicable trustee an
opinion of counsel to the effect that the holders of such debt securities will
not recognize income, gain or loss for United States federal income tax purposes
as a result of such defeasance or covenant defeasance and will be subject to
United States federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance or covenant
defeasance had not occurred. Such opinion of counsel, in the case of defeasance,
will be required to refer to and be based upon a ruling received from or
published by the Internal Revenue Service or a change in applicable United
States federal income tax law occurring after the date of the indenture. In the
event of such defeasance, the holders of such debt securities would be able to
look only to such trust fund for payment of principal, any premium (or
make-whole amount), and interest.
When we
use the term “government obligations,” we mean securities that are:
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direct obligations of the United
States or the government that issued the foreign currency in which the
debt securities of a particular series are payable, for the payment of
which its full faith and credit is pledged;
or
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obligations of a person
controlled or supervised by and acting as an agency or instrumentality of
the United States or other government that issued the foreign currency in
which the debt securities of such series are payable, the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
United States or such other government, which are not callable or
redeemable at the option of the issuer thereof and shall also include a
depositary receipt issued by a bank or trust company as custodian with
respect to any such government obligation or a specific payment of
interest on or principal of any such government obligation held by such
custodian for the account of the holder of a depositary receipt. However,
except as required by law, such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the government
obligation or the specific payment of interest on or principal of the
government obligation evidenced by such depositary
receipt.
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Unless
otherwise provided in the applicable prospectus supplement, if after we have
deposited funds and/or government obligations to effect defeasance or covenant
defeasance with respect to debt securities of any series, (a) the holder of a
debt security of such series is entitled to, and does, elect under the terms of
the applicable indenture or the terms of such debt security to receive payment
in a currency, currency unit or composite currency other than that in which such
deposit has been made in respect of such debt security, or (b) a conversion
event occurs in respect of the currency, currency unit or composite currency in
which such deposit has been made, the indebtedness represented by such debt
security will be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of, and premium (or make-whole
amount) and interest on, such debt security as they become due out of the
proceeds yielded by converting the amount so deposited in respect of such debt
security into the currency, currency unit or composite currency in which such
debt security becomes payable as a result of such election or such cessation of
usage based on the applicable market exchange rate.
When we
use the term “conversion event,” we mean no longer using:
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a currency, currency unit or
composite currency both by the government of the country that issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking
community;
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the European Currency Unit both
within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities;
or
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any currency unit or composite
currency other than the European Currency Unit for the purposes for which
it was established.
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Unless
otherwise provided in the applicable prospectus supplement, all payments of
principal of, and any premium (or make-whole amount) and interest on, any debt
security that is payable in a foreign currency that ceases to be used by its
government of issuance shall be made in United States dollars.
In the
event that (a) we effect covenant defeasance with respect to any debt securities
and (b) such debt securities are declared due and payable because of the
occurrence of any event of default, the amount in such currency, currency unit
or composite currency in which such debt securities are payable, and government
obligations on deposit with the applicable trustee, will be sufficient to pay
amounts due on such debt securities at the time of their stated maturity but may
not be sufficient to pay amounts due on such debt securities at the time of the
acceleration resulting from such event of default. However, we would remain
liable to make payments of such amounts due at the time of
acceleration.
The
applicable prospectus supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the debt securities of or
within a particular series.
Conversion
Rights
The terms
and conditions, if any, upon which the debt securities are convertible into
common stock will be set forth in the applicable prospectus supplement. The
terms will include whether the debt securities are convertible into shares of
common stock, the conversion price, or manner of calculation thereof, the
conversion period, provisions as to whether conversion will be at the issuing
company’s option or the option of the holders, the events requiring an
adjustment of the conversion price and provisions affecting conversion in the
event of the redemption of the debt securities and any restrictions on
conversion.
Global
Securities
The debt
securities of a series may be issued in whole or in part in the form of one or
more global securities that will be deposited with, or on behalf of, a
depository identified in the applicable prospectus supplement relating to such
series. Global securities, if any, issued in the United States are expected to
be deposited with The Depository Trust Company (“DTC”), as depository. We may
issue global securities in either registered or bearer form and in either
temporary or permanent form. We will describe the specific terms of the
depository arrangement with respect to a series of debt securities in the
applicable prospectus supplement relating to such series. We expect that unless
the applicable prospectus supplement provides otherwise, the following
provisions will apply to depository arrangements.
Once a
global security is issued, the depository for such global security or its
nominee will credit on its book entry registration and transfer system the
respective principal amounts of the individual debt securities represented by
such global security to the accounts of participants that have accounts with
such depository. Such accounts shall be designated by the underwriters, dealers
or agents with respect to such debt securities or by us if we offer such debt
securities directly. Ownership of beneficial interests in such global security
will be limited to participants with the depository or persons that may hold
interests through those participants.
We expect
that, under procedures established by DTC, ownership of beneficial interests in
any global security for which DTC is the depository will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
DTC or its nominee, with respect to beneficial interests of participants with
the depository, and records of participants, with respect to beneficial
interests of persons who hold through participants with the depository. Neither
we nor the trustee will have any responsibility or liability for any aspect of
the records of DTC or for maintaining, supervising or reviewing any records of
DTC or any of its participants relating to beneficial ownership interests in the
debt securities. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and laws may impair the ability to own, pledge or transfer beneficial
interest in a global security.
So long
as the depository for a global security or its nominee is the registered owner
of such global security, such depository or such nominee, as the case may be,
will be considered the sole owner or holder of the debt securities represented
by the global security for all purposes under the applicable indenture. Except
as described below or in the applicable prospectus supplement, owners of
beneficial interest in a global security will not be entitled to have any of the
individual debt securities represented by such global security registered in
their names, will not receive or be entitled to receive physical delivery of any
such debt securities in definitive form and will not be considered the owners or
holders thereof under the applicable indenture. Beneficial owners of debt
securities evidenced by a global security will not be considered the owners or
holders thereof under the applicable indenture for any purpose, including with
respect to the giving of any direction, instructions or approvals to the trustee
under the indenture. Accordingly, each person owning a beneficial interest in a
global security with respect to which DTC is the depository must rely on the
procedures of DTC and, if such person is not a participant with the depository,
on the procedures of the participant through which such person owns its
interests, to exercise any rights of a holder under the applicable indenture. We
understand that, under existing industry practice, if DTC requests any action of
holders or if an owner of a beneficial interest in a global security desires to
give or take any action which a holder is entitled to give or take under the
applicable indenture, DTC would authorize the participants holding the relevant
beneficial interest to give or take such action, and such participants would
authorize beneficial owners through such participants to give or take such
actions or would otherwise act upon the instructions of beneficial owners
holding through them.
Payments
of principal of, and any premium, or make whole amount, and interest on,
individual debt securities represented by a global security registered in the
name of a depository or its nominee will be made to or at the direction of the
depository or its nominee, as the case may be, as the registered owner of the
global security under the applicable indenture. Under the terms of the
applicable indenture, we and the trustee may treat the persons in whose name
debt securities, including a global security, are registered as the owners
thereof for the purpose of receiving such payments. Consequently, neither we nor
the trustee have or will have any responsibility or liability for the payment of
such amounts to beneficial owners of debt securities including principal, any
premium, or make whole amount, or interest. We believe, however, that it is
currently the policy of DTC to immediately credit the accounts of relevant
participants with such payments, in amounts proportionate to their respective
holdings of beneficial interests in the relevant global security as shown on the
records of DTC or its nominee. We also expect that payments by participants to
owners of beneficial interests in such global security held through such
participants will be governed by standing instructions and customary practices,
as is the case with securities held for the account of customers in bearer form
or registered in street name, and will be the responsibility of such
participants. Redemption notices with respect to any debt securities represented
by a global security will be sent to the depository or its nominee. If less than
all of the debt securities of any series are to be redeemed, we expect the
depository to determine the amount of the interest of each participant in such
debt securities to be redeemed to be determined by lot. Neither we, the trustee,
any paying agent nor the security registrar for such debt securities will 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
security for such debt securities or for maintaining any records with respect
thereto.
Neither
we nor the trustee will be liable for any delay by the holders of a global
security or the depository in identifying the beneficial owners of debt
securities, and we and the trustee may conclusively rely on, and will be
protected in relying on, instructions from the holder of a global security or
the depository for all purposes. The rules applicable to DTC and its
participants are on file with the SEC.
If a
depository for any debt securities is at any time unwilling, unable or
ineligible to continue as depository and we do not appoint a successor
depository within 90 days, we will issue individual debt securities in exchange
for the global security representing such debt securities. In addition, we may
at any time and in our sole discretion, subject to any limitations described in
the applicable prospectus supplement relating to such debt securities, determine
not to have any of such debt securities represented by one or more global
securities and in such event will issue individual debt securities in exchange
for the global security or securities representing such debt securities.
Individual debt securities so issued will be issued in denominations of $1,000
and integral multiples of $1,000.
The debt
securities of a series may also be issued in whole or in part in the form of one
or more bearer global securities that will be deposited with a depository, or
with a nominee for such depository, identified in the applicable prospectus
supplement. Any such bearer global securities may be issued in temporary or
permanent form. The specific terms and procedures, including the specific terms
of the depository arrangement, with respect to any portion of a series of debt
securities to be represented by one or more bearer global securities will be
described in the applicable prospectus supplement.
No Recourse
There is
no recourse under any obligation, covenant or agreement in the applicable
indenture or with respect to any security against any of our or our successor’s
past, present or future stockholders, employees, officers or
directors.
DESCRIPTION
OF COMMON STOCK
The
following is a description of the material terms and provisions of our common
stock. It may not contain all the information that is important to you.
Therefore, you should read our charter and bylaws before you purchase any shares
of our common stock.
General
Under our
charter, we have authority, without further stockholder action, to provide for
the issuance of up to 20,000,000 shares of common stock, no par value per share.
We may amend our charter from time to time to increase the number of authorized
shares of common stock. Any such amendment would require the approval of the
holders of a majority of our stock entitled to vote.
As of
January 19, 2010, we had 7,644,837 shares of common stock issued and
outstanding. All shares of common stock will, when issued, be duly authorized,
fully paid and nonassessable. Thus, the full price for the outstanding shares of
common stock will have been paid at issuance and any holder of our common stock
will not be later required to pay us any additional money for such common
stock. Our common stock is listed on NASDAQ under the symbol
“CAC.”
Dividends
Subject
to the preferential rights of any other class or series of stock, holders of
shares of our common stock will be entitled to receive dividends, if and when
they are authorized and declared by our board of directors, out of assets that
we may legally use to pay dividends. In the event we are liquidated,
dissolved or our affairs are wound up, after we pay or make adequate provision
for all of our known debts and liabilities, each holder of common stock will
receive dividends pro rata out of assets that we can legally use to pay
distributions, subject to any rights that are granted to the holders of any
class or series of preferred stock.
Our
ability to pay dividends on our common stock:
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depends primarily upon the
ability of our subsidiaries, including the CNB, to pay dividends or
otherwise transfer funds to us;
and
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is subject to policies
established by the FRB. See “Supervision and
Regulation.”
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Voting
Rights
Except as
otherwise required by law and except as provided by the terms of any other class
or series of stock, holders of common stock have the exclusive power to vote on
all matters presented to our stockholders, including the election of directors.
Holders of common stock are entitled to one vote per share. Subject to any
rights to elect directors that are granted to the holders of any class or series
of preferred stock, a majority of the votes cast at a meeting of stockholders at
which a quorum is present is required to elect a director; provided; however,
that if the number of nominees exceeds the number of directors to be elected,
nominees who receive a plurality of the votes cast at a meeting of stockholders
at which a quorum is present is sufficient to elect a director.
Other
Rights
Subject
to the preferential rights of any other class or series of stock, all shares of
common stock have equal dividend, distribution, liquidation and other rights,
and have no preference, appraisal or exchange rights, except for any appraisal
rights provided by Maine law. Furthermore, holders of common stock have no
conversion, sinking fund or redemption rights, or preemptive rights to subscribe
for any of our securities.
Classified
Board and Other Matters
Our board
of directors is divided into three classes, each of which serves until the third
annual meeting of shareholders after their election, with one class being
elected each year. Our bylaws require that shareholders provide the Secretary of
our company with not less than 90 days nor more than 120 days before the first
anniversary of the preceding year’s annual meeting for the purpose of any
director nominations. If the date of the annual meeting is advanced by more than
30 days before or delayed by more than 60 days after the preceding year’s annual
meeting, notice will be timely if it is delivered not earlier than 120 days
before and not later than 90 days before the annual meeting or 10 days after
notice of the date of the annual meeting is provided. Maine law provides that
special meetings of shareholders of our company may be called only by a majority
of the board of directors, by the person or persons authorized to do so by the
articles of incorporation or bylaws or if the holders of at least 10% of all the
votes entitled to be cast on any issue proposed to be considered at the special
meeting sign, date and deliver a demand for the meeting to the corporation.
Applicable provisions of Maine law provide that shareholders may take action by
written consent in lieu of a meeting, provided that the written consent is
signed by all holders of shares entitled to vote at a meeting. These provisions
may diminish the likelihood that a potential acquiror would make an offer for
our common stock or that there would otherwise be a change in control of our
company.
Maine
Anti-Takeover Laws
We are subject to the provisions of
Section 1109 of Chapter 11 of the Maine Business Corporation Act, an
anti-takeover law. In general, this statute prohibits a publicly-held Maine
corporation from engaging in a “business combination” with an “interested
shareholder” for a period of five years after the date of the transaction in
which the person becomes an interested shareholder, unless either (1) the
interested shareholder obtains the approval of the board of directors prior to
becoming an interested shareholder or (2) the business combination is approved,
subsequent to the date of the transaction in which the person becomes an
interested shareholder, by the Board of Directors of the Maine corporation and
authorized by the holders of a majority of the outstanding voting stock of the
corporation not beneficially owned by that “interested stockholder” or any
affiliate or associate thereof or by persons who are either directors or
officers and also employees of the corporation. An interested shareholder is any
person, firm or entity that is directly or indirectly the beneficial owner of
25% or more of the outstanding voting stock of the corporation, other than by
reason of a revocable proxy given in response to a proxy solicitation conducted
in accordance with the Exchange Act which is not then reportable on a Schedule
13D under the Exchange Act. We may at any time amend our articles of
organization or bylaws, by vote of the holders of at least 66 2/3% of our voting
stock, to elect not to be governed by Section 1109.
We also
are subject to the provisions of Section 1110 of the Maine Business Corporation
Act, entitled “Right of shareholders to receive payment for shares following
control transaction.” Section 1110 of the Maine Business Corporation Act
generally provides shareholders of a Maine corporation which has a class of
voting shares registered or traded on a national securities exchange or
registered under the Exchange Act, with the right to demand payment of an amount
equal to the fair value of each voting share in the corporation held by the
shareholder from a person or group of persons which become a “controlling
person,” which generally is defined to mean an individual, firm or entity (or
group thereof) which has voting power over at least 25% of the outstanding
voting shares of the corporation. Such a demand must be submitted to the
“controlling person” within 30 days after the “controlling person” provides
required notice to the shareholders of the acquisition or transactions which
resulted in such person or group becoming a “controlling person.”
Transfer
Agent
The
transfer agent and registrar for the common stock is American Stock Transfer
& Trust Company.
DESCRIPTION
OF WARRANTS
We have
no warrants outstanding. We may issue warrants for the purchase of common stock.
Warrants may be issued independently, together with any other securities offered
by any prospectus supplement or through a dividend or other distribution to our
stockholders and may be attached to or separate from such securities. We may
issue warrants under a warrant agreement to be entered into between us and a
warrant agent. We will name any warrant agent in the applicable prospectus
supplement. The warrant agent will act solely as our agent in connection with
the warrants of a particular series and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
warrants.
The
following is a description of the general terms and provisions of any warrants
we may issue and may not contain all the information that is important to you.
You can access complete information by referring to the applicable prospectus
supplement. In the applicable prospectus supplement, we will describe the terms
of the warrants and applicable warrant agreement, including, where applicable,
the following:
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the title of the
warrants;
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the aggregate number of warrants
offered and the aggregate number of warrants outstanding as of the most
practicable date;
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the price or prices at which we
will issue the warrants;
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the designation, number and terms
of the common stock that can be purchased upon exercise of the warrants
and the procedures and conditions relating to the exercise of the
warrants;
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the designation and terms of the
other securities, if any, with which the warrants are issued and the
number of warrants issued with each of those
securities;
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the
date, if any, on and after which the warrants and the related common stock
will be separately transferable;
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the price at which each share of
common stock that can be purchased upon exercise of such warrants may be
purchased;
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the date on which the right to
exercise the warrants shall commence and the date on which such right
shall expire;
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the minimum or maximum amount of
such warrants which may be exercised at any one
time;
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whether the warrants represented
by warrant certificates will be issued in registered or bearer form, and,
if registered, where they may be transferred and
registered;
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information with respect to any
book-entry procedures;
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a discussion of applicable United
States federal income tax consequences;
and
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any
other terms of such warrants, including terms and additional rights,
preferences, privileges, procedures and limitations relating to the
transferability, exchange and exercise of such
warrants.
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HOW
WE PLAN TO OFFER AND SELL THE SECURITIES
We may
sell the securities in any one or more of the following ways:
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directly to investors, including
through a specific bidding, auction or other
process;
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| |
|
to investors through
agents;
|
| |
|
to or through brokers or
dealers;
|
| |
|
to the public through
underwriting syndicates led by one or more managing
underwriters;
|
| |
|
to one or more underwriters
acting alone for resale to investors or to the public;
and
|
| |
|
through a combination of any such
methods of sale.
|
Our
common stock may be issued upon conversion of debt securities or in exchange for
our debt securities. Securities may also be issued upon exercise of warrants. We
reserve the right to sell securities directly to investors on their own behalf
in those jurisdictions where they are authorized to do so.
If we
sell securities to a dealer acting as principal, the dealer may resell such
securities at varying prices to be determined by such dealer in its discretion
at the time of resale without consulting with us and such resale prices may not
be disclosed in the applicable prospectus supplement.
Any
underwritten offering may be on a best efforts or a firm commitment basis. We
may also offer securities through subscription rights distributed to our
stockholders on a pro rata basis, which may or may not be transferable. In any
distribution of subscription rights to stockholders, if all of the underlying
securities are not subscribed for, we may then sell the unsubscribed securities
directly to third parties or may engage the services of one or more
underwriters, dealers or agents, including standby underwriters, to sell the
unsubscribed securities to third parties.
Sales of
the securities may be effected from time to time in one or more transactions,
including negotiated transactions:
|
|
•
|
at a fixed price or prices, which
may be changed;
|
|
|
•
|
at market prices prevailing at
the time of sale;
|
|
|
•
|
at prices related to prevailing
market prices; or
|
Any of
the prices may represent a discount from the then prevailing market
prices.
In the
sale of the securities, underwriters or agents may receive compensation from us
in the form of underwriting discounts or commissions and may also receive
compensation from purchasers of the securities, for whom they may act as agents,
in the form of discounts, concessions or commissions. Underwriters may sell the
securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents. Discounts,
concessions and commissions may be changed from time to time. Dealers and agents
that participate in the distribution of the securities may be deemed to be
underwriters under the Securities Act, and any discounts, concessions or
commissions they receive from us and any profit on the resale of securities they
realize may be deemed to be underwriting compensation under applicable federal
and state securities laws.
The
applicable prospectus supplement will, where applicable:
| |
•
|
identify any such underwriter,
dealer or
agent;
|
| |
|
describe any compensation in the
form of discounts, concessions, commissions or otherwise received from us
by each such underwriter or agent and in the aggregate by all underwriters
and agents;
|
| |
|
describe any discounts,
concessions or commissions allowed by underwriters to participating
dealers;
|
| |
|
identify the amounts
underwritten;
|
| |
|
identify the nature of the
underwriter’s or underwriters’ obligation to take the securities;
and
|
| |
|
identify any over-allotment
option under which the underwriters may purchase additional securities
from us.
|
Unless
otherwise specified in the related prospectus supplement, each series of
securities will be a new issue with no established trading market, other than
shares of our common stock, which are listed on NASDAQ. Any common stock sold
pursuant to a prospectus supplement will be listed on NASDAQ, subject to
official notice of issuance. We may elect to apply for quotation or listing of
any other class or series of our securities, on a quotation system or an
exchange, but we are not obligated to do so. It is possible that one or more
underwriters may make a market in the securities, but such underwriters will not
be obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of, or the trading market
for, any offered securities.
We may
enter into derivative transactions with third parties, or sell securities not
covered by this prospectus to third parties in privately negotiated
transactions. If disclosed in the applicable prospectus supplement, in
connection with those derivative transactions third parties may sell securities
covered by this prospectus and such prospectus supplement, including in short
sale transactions. If so, the third party may use securities pledged by us or
borrowed from us or from others to settle those short sales or to close out any
related open borrowings of securities, and may use securities received from us
in settlement of those derivative transactions to close out any related open
borrowings of securities. If the third party is or may be deemed to be an
underwriter under the Securities Act, it will be identified in the applicable
prospectus supplements.
Until the
distribution of the securities is completed, rules of the SEC may limit the
ability of any underwriters and selling group members to bid for and purchase
the securities. As an exception to these rules, underwriters are permitted to
engage in some transactions that stabilize the price of the securities. Such
transactions consist of bids or purchases for the purpose of pegging, fixing or
maintaining the price of the securities.
Underwriters
may engage in overallotment. If any underwriters create a short position in the
securities in an offering in which they sell more securities than are set forth
on the cover page of the applicable prospectus supplement, the underwriters may
reduce that short position by purchasing the securities in the open
market.
The lead
underwriters may also impose a penalty bid on other underwriters and selling
group members participating in an offering. This means that if the lead
underwriters purchase securities in the open market to reduce the underwriters’
short position or to stabilize the price of the securities, they may reclaim the
amount of any selling concession from the underwriters and selling group members
who sold those securities as part of the offering.
In
general, purchases of a security for the purpose of stabilization or to reduce a
short position could cause the price of the security to be higher than it might
be in the absence of such purchases. The imposition of a penalty bid might also
have an effect on the price of a security to the extent that it were to
discourage resales of the security before the distribution is
completed.
We do not
make any representation or prediction as to the direction or magnitude of any
effect that the transactions described above might have on the price of the
securities. In addition, we do not make any representation that underwriters
will engage in such transactions or that such transactions, once commenced, will
not be discontinued without notice.
Under
agreements into which we may enter, underwriters, dealers and agents who
participate in the distribution of the securities may be entitled to
indemnification by us against or contribution towards certain civil liabilities,
including liabilities under the applicable securities laws.
Underwriters,
dealers and agents may engage in transactions with us, perform services for us
or be our tenants in the ordinary course of business.
If
indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by
particular institutions to purchase securities from us at the public offering
price set forth in such prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on the date or dates stated in such
prospectus supplement. Each delayed delivery contract will be for an amount no
less than, and the aggregate amounts of securities sold under delayed delivery
contracts shall be not less nor more than, the respective amounts stated in the
applicable prospectus supplement. Institutions with which such contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but will in all cases be subject to our approval. The
obligations of any purchaser under any such contract will be subject to the
conditions that (a) the purchase of the securities shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which the purchaser is subject, and (b) if the securities are being sold
to underwriters, we shall have sold to the underwriters the total amount of the
securities less the amount thereof covered by the contracts. The underwriters
and such other agents will not have any responsibility in respect of the
validity or performance of such contracts.
To comply
with applicable state securities laws, the securities offered by this prospectus
will be sold, if necessary, in such jurisdictions only through registered or
licensed brokers or dealers. In addition, securities may not be sold in some
states unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with.
Underwriters,
dealers or agents that participate in the offer of securities, or their
affiliates or associates, may have engaged or engage in transactions with and
perform services for us or our affiliates in the ordinary course of business for
which they may have received or receive customary fees and reimbursement of
expenses.
The
consolidated financial statements of the Company as of December 31, 2008
and 2007, and for each of the years in the three-year period ended
December 31, 2008, and management’s assessment of the effectiveness of
internal control over financial reporting as of December 31, 2008, have
been incorporated by reference herein, in reliance upon the reports of Berry,
Dunn, McNeil & Parker, an independent registered public accounting firm and
upon the authority of said firm as an expert in accounting and
auditing.
The
validity of the securities we are offering will be passed upon for us by
Bernstein, Shur, Sawyer & Nelson, P.A.
You
should only rely on the information contained in this prospectus, any prospectus
supplement or any document incorporated by reference. We have not authorized
anyone else to provide you with different or additional information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
expenses in connection with the issuance and distribution of the securities
being registered will be borne by Camden National Corporation and are set forth
in the following table. All amounts except the registration fee are
estimated.
|
SEC
Registration fee
|
|
$ |
7,130 |
|
|
Legal
fees and expenses
|
|
|
30,000 |
* |
|
Accounting
fees and expenses
|
|
|
1,000 |
* |
|
Printing
and related expenses
|
|
|
1,500 |
* |
|
Miscellaneous
expenses
|
|
|
— |
* |
|
Total
|
|
$ |
39,630 |
|
Item
15. Indemnification of Directors and Officers.
The Maine
Business Corporation Act, or MBCA, permits a corporation to indemnify a director
against the obligation to pay a judgment, settlement, penalty, fine, including
an excise tax assessed with respect to an employee benefit plan, or reasonable
expenses incurred with respect to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, arbitrative or
investigative and whether formal or informal if: (i) the director’s conduct
was in good faith, (ii) the director reasonably believed, in the case of
the director’s official capacity, the conduct was in the best interests of the
corporation and, in all other cases, the conduct was at least not opposed to its
best interests, and (iii) in a criminal proceeding, the director had no
reasonable cause to believe his or her conduct was unlawful. The corporation may
only indemnify a director in connection with a proceeding if such proceeding is
by or in the right of the corporation, only if the above standards are met, and
only for reasonable expenses incurred in connection with such proceeding. The
termination of a proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendre is not, of itself, determinative that the director did
not meet the standard of conduct necessary for indemnification. Notwithstanding
the foregoing, a corporation may not indemnify a director if the director was
adjudged liable on the basis that the director received a financial benefit to
which the director was not entitled whether or not involving the director’s
official capacity. In addition, the MBCA provides that, a corporation must
indemnify a director against reasonable expenses incurred by the director in
connection with the proceeding where the director was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which the director was
a party because the director was a director of the corporation.
The MBCA
permits a corporation to indemnify officers to the same extent as directors,
except that a corporation may not indemnify an officer for liability that arises
out of conduct that constitutes: (a) receipt of a financial benefit to
which the officer is not entitled, (b) an intentional infliction of harm on
the corporation or the shareholders or (c) an intentional violation of
criminal law.
Our
bylaws provide that the Company shall indemnify any director and may indemnify
any officer for liability to any person or for any action or for failure to take
any action except liability for: (1) receipt of a benefit to which the
individual was not entitled, (2) an intentional infliction of harm on the
Company or its shareholders or (3) an intentional violation of criminal
law. The decision whether to indemnify an officer and to what extent shall be
determined by the board or directors within a reasonable time after receiving a
request for indemnification. The board of directors may determinate to postpone
such decision if additional information is needed or reconsider a decision
already made if the officer presents additional relevant
information.
The MBCA
permits a corporation to purchase and maintain insurance on behalf of an
individual who is a director or officer of the corporation, or who, while a
director or officer of the corporation, serves at the corporation’s request in
such role for another entity against liability asserted against or incurred by
that individual in that capacity or arising from the individual’s status as a
director or officer, whether or not the corporation would have power to
otherwise indemnify or advance expenses to the individual.
As
permitted by the MBCA, we maintains directors and officers liability insurance
in amounts and on terms which our board of directors deems reasonable. In the
ordinary course of business, our board of directors regularly reviews the scope
and adequacy of such insurance coverage.
Item
16. Exhibits.
|
Exhibit No.
|
|
Description
|
|
|
|
|
|
1.1
|
|
Form
of Underwriting Agreement*
|
|
|
|
|
|
1.2
|
|
Form
of Distribution Agreement (Debt Securities)*
|
|
|
|
|
|
3.1.1
|
|
The
Articles of Incorporation of Camden National Corporation (incorporated by
reference to Exhibit 3.1 to the Company’s Form 10-Q filed with the SEC on
August 10, 2001)
|
|
|
|
|
|
3.1.2
|
|
Articles
of Amendment to the Articles of Incorporation of Camden National
Corporation, as amended to date (incorporated herein by reference to
Exhibit 3.3 to the Company’s Form 10-Q filed with the SEC on May 9,
2003)
|
|
|
|
|
|
3.1.3
|
|
Articles
of Amendment to the Articles of Incorporation of Camden National
Corporation, as amended to date (incorporated by reference to Exhibit
3.i.3 to the Company’s Form 10-Q filed with the SEC on May 4,
2007)
|
|
|
|
|
|
3.2
|
|
The
Bylaws of Camden National Corporation, as amended to date (incorporated by
reference to Exhibit 3.ii to the Company’s Form 10-Q filed with the SEC on
May 4, 2007)
|
|
|
|
|
|
4.1
|
|
Form
of Indenture for Senior Debt†
|
|
|
|
|
|
4.2
|
|
Form
of Indenture for Subordinated Debt†
|
|
|
|
|
|
4.3
|
|
Form
of Senior Debt Security (included as part of Exhibit
4.1)†
|
|
|
|
|
|
4.4
|
|
Form
of Subordinated Debt Security (included as part of Exhibit
4.2)†
|
|
|
|
|
|
4.5
|
|
Form
of Warrant Agreement (Stock) (including form of
warrant)*
|
|
|
|
|
|
5.1
|
|
Opinion
of Bernstein, Shur, Sawyer & Nelson, P.A. as to the legality of the
Securities being registered†
|
|
|
|
|
|
12.1
|
|
Calculation
of Ratios of Earnings to Fixed Charges†
|
|
|
|
|
|
23.1
|
|
Consent
of Bernstein, Shur, Sawyer & Nelson, P.A. (included in Exhibit 5.1
hereto)†
|
|
|
|
|
|
23.2
|
|
Consent
of Berry, Dunn, McNeil & Parker, Independent Registered Public
Accounting Firm†
|
|
|
|
|
|
24.1
|
|
Powers
of Attorney (included on signature page of this Registration
Statement)†
|
|
|
|
|
|
25.1
|
|
Form
T-1 Statement of Eligibility of Trustee for Senior Indenture under the
Trust Indenture Act of 1939**
|
|
|
|
|
|
25.2
|
|
Form
T-1 Statement of Eligibility of Trustee for Subordinated Indenture under
the Trust Indenture Act of
1939**
|
|
*
|
To be filed by amendment or as an
exhibit to a document to be incorporated or deemed to be incorporated by
reference to this Registration
Statement.
|
|
**
|
To
be incorporated herein by reference from a subsequent filing in accordance
with Section 305(b)(2) of the Trust Indenture Act of
1939.
|
Item
17. Undertakings.
The
undersigned registrant hereby undertakes:
(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 volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
and
(iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however, that
paragraphs (i), (ii) and (iii) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Securities and Exchange
Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(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; and
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser,
(i)
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration statement;
and (B) each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date; or
(ii) each
prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B
or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date it is first
used after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use.
(5)
That, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant’s annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of the securities at that time shall be deemed to be the initial bona
fide offering thereof.
(6) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(7)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and that it has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Camden, State of Maine, on the 22nd day of
January, 2010.
| |
CAMDEN NATIONAL CORPORATION
|
| |
|
|
| |
By:
|
/s/
Gregory A. Dufour
|
| |
|
Gregory A. Dufour
|
| |
|
President and Chief Executive Officer
|
| |
|
|
| |
By:
|
/s/
Deborah A. Jordan
|
| |
|
Deborah A. Jordan
|
| |
|
Chief Financial Officer
|
| |
|
(Principal Financial Officer & Principal Accounting Officer)
|
KNOW ALL
MEN BY THESE PRESENTS, that we, the undersigned officers and directors of Camden
National Corporation, hereby severally constitute Gregory A. Dufour and Deborah
A. Jordan and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below and in such other capacities as the undersigned may
from time to time serve in the future, the registration statement filed herewith
and any and all amendments (including post-effective amendments) to said
registration statement (or any registration statement for the same offering that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act
of 1933, as amended), and generally to do all such things in our names and in
our capacities as officers and directors to enable Camden National Corporation
to comply with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said registration statement and any and all amendments
thereto.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
|
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
President,
Director and Chief Executive Officer
|
|
|
|
Gregory
A. Dufour
|
|
(Principal
Executive Officer)
|
|
January
22, 2010
|
|
|
|
|
|
|
|
|
|
Chief
Financial Officer
|
|
|
|
Deborah
A. Jordan
|
|
(Principal
Financial Officer & Principal Accounting Officer)
|
|
January
22, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rendle
A. Jones
|
|
Chairman
and Director
|
|
January
22, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ann
W. Bresnahan
|
|
Director
|
|
January
22, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert
J. Campbell
|
|
Director
|
|
January
22, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David
C. Flanagan
|
|
Director
|
|
January
22, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ward
I. Graffam
|
|
Director
|
|
January
22, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
W. Holmes
|
|
Director
|
|
January
22, 2010
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James
H. Page
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Director
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January
22, 2010
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Robin
A. Sawyer
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Director
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January
22, 2010
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Karen
W. Stanley
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Director
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January
22,
2010
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EXHIBIT
INDEX
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Description
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1.1
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Form
of Underwriting Agreement*
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1.2
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Form
of Distribution Agreement (Debt Securities)*
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3.1.1
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The
Articles of Incorporation of Camden National Corporation (incorporated by
reference to Exhibit 3.1 to the Company’s Form 10-Q filed with the SEC on
August 10, 2001)
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3.1.2
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Articles
of Amendment to the Articles of Incorporation of Camden National
Corporation, as amended to date (incorporated herein by reference to
Exhibit 3.3 to the Company’s Form 10-Q filed with the SEC on May 9,
2003)
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3.1.3
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Articles
of Amendment to the Articles of Incorporation of Camden National
Corporation, as amended to date (incorporated by reference to Exhibit
3.i.3 to the Company’s Form 10-Q filed with the SEC on May 4,
2007)
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3.2
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The
Bylaws of Camden National Corporation, as amended to date (incorporated by
reference to Exhibit 3.ii to the Company’s Form 10-Q filed with the SEC on
May 4, 2007)
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4.1
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Form
of Indenture for Senior Debt†
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4.2
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Form
of Indenture for Subordinated Debt†
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4.3
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Form
of Senior Debt Security (included as part of Exhibit
4.1)†
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4.4
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Form
of Subordinated Debt Security (included as part of Exhibit
4.2)†
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4.5
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Form
of Warrant Agreement (Stock) (including form of
warrant)*
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5.1
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Opinion
of Bernstein, Shur, Sawyer & Nelson, P.A. as to the legality of the
Securities being registered†
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12.1
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Calculation
of Ratios of Earnings to Fixed Charges†
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23.1
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Consent
of Bernstein, Shur, Sawyer & Nelson, P.A. (included in Exhibit 5.1
hereto)†
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23.2
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Consent
of Berry, Dunn, McNeil & Parker, Independent Registered Public
Accounting Firm†
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24.1
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Powers
of Attorney (included on signature page of this Registration
Statement)†
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25.1
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Form
T-1 Statement of Eligibility of Trustee for Senior Indenture under the
Trust Indenture Act of 1939**
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25.2
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Form
T-1 Statement of Eligibility of Trustee for Subordinated Indenture under
the Trust Indenture Act of
1939**
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*
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To be filed by amendment or as an
exhibit to a document to be incorporated or deemed to be incorporated by
reference to this Registration
Statement.
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**
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To
be incorporated herein by reference from a subsequent filing in accordance
with Section 305(b)(2) of the Trust Indenture Act of
1939.
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