As
filed with the Securities and Exchange Commission on November 3,
2009
Registration
No. 333-_________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
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CATERPILLAR
INC.
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(Exact Name
of Registrant as Specified in Its Charter)
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Delaware
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37-0602744
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(State or
Other Jurisdiction of Incorporation or Organization)
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(IRS Employer
Identification No.)
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100
NE Adams Street
Peoria,
Illinois 61629
(309)
675-1000
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(Address,
Including Zip Code, and Telephone Number, Including Area Code, of
Registrant’s Principal Executive Offices)
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James
B. Buda
Vice
President, Secretary and General Counsel
Caterpillar
Inc.
100
NE Adams Street
Peoria,
Illinois 61629-7310
(309)
675-4429
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(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent for Service)
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Approximate
date of commencement of proposed sale to the public: From time to time after
this Registration Statement becomes effective.
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 the 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. ¨
Page 1
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If
this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. x
If
this Form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the Securities
Act, check the following box. o
Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer or a smaller reporting company. See the definitions of
“large accelerated filer,” “accelerated filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer x
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Accelerated filer o
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Non-accelerated filer o
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Smaller Reporting Company o
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(Do not check
if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered (1)
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Amount
to be Registered
Proposed
Maximum Offering Price per Share
Proposed
Maximum Aggregate Offering Price
Amount of Registration Fee
(2)
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Debt
Securities
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Common
Stock
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Preferred
Stock
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Warrants to
Purchase Common Stock or Debt Securities
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(1)
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The securities
registered under this registration statement may be sold separately,
together or as units with other securities registered under this
registration statement and may include hybrid securities consisting of a
combination of features of any of the securities listed in the
table.
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(2)
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An
indeterminate aggregate initial offering price and number or amount of the
securities of each identified class is being registered as may from time
to time be sold at indeterminate prices. Separate consideration may or may
not be received for securities that are issuable upon conversion of, or in
exchange for, or upon exercise of, convertible or exchangeable securities.
In accordance with Rules 456(b) and 457(r), the Registrant is deferring
payment of all of the registration
fee.
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Page
2
PROSPECTUS
Debt
Securities
Common Stock
Preferred Stock
Warrants to Purchase Common Stock or Debt Securities
Any Combination of the Above
Common Stock
Preferred Stock
Warrants to Purchase Common Stock or Debt Securities
Any Combination of the Above
We
may offer from time to time:
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debt
securities;
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shares of our
common stock, par value $1.00 per
share;
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preferred
stock, par value $1.00 per share;
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warrants to
purchase common stock or debt securities;
and
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any
combination of the above.
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We will provide specific terms of any offering in supplements to this prospectus. The securities may be offered separately or together in any combination and as a separate series. You should read this prospectus and any prospectus supplement carefully before you invest.
Our common stock is
listed on the New York Stock Exchange under the symbol “CAT.”
Investing
in our securities involves risks. See “Risk Factors” beginning on
page 5 of this prospectus and Risk Factors that are incorporated by reference
into this prospectus.
These securities
have not been approved by the Securities and Exchange Commission or any State
securities commission, nor have these organizations determined that this
prospectus is accurate or complete. Any representation to the
contrary is a criminal offense.
We
may sell these securities on a continuous or delayed basis directly, through
agents, dealers or underwriters as designated from time to time, or through a
combination of these methods. We reserve the sole right to accept,
and together with any agents, dealers and underwriters, reserve the right to
reject, in whole or in part, any proposed purchase of securities. If
any agents, dealers or underwriters are involved in the sale of any securities,
the applicable prospectus supplement will set forth any applicable commissions
or discounts. Our net proceeds from the sale of securities also will
be set forth in the applicable prospectus supplement.
Prospectus dated
November 3, 2009
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This prospectus is
part of a “shelf” registration statement that we have filed with the Securities
and Exchange Commission (the “SEC”). By using a shelf registration
statement, we may sell, at any time and from time to time, in one or more
offerings, any combination of securities described in this
prospectus. For further information about our business and the
securities, you should refer to the registration statement and its
exhibits. The exhibits to our registration statement contain the full
text of certain contracts and other important documents we have summarized in
this prospectus. Since these summaries may not contain all the
information that you may find important in deciding whether to purchase
securities we offer, you should review the full text of these
documents. The registration statement and the exhibits can be
obtained from the SEC as indicated under the heading, “Where You Can Find More
Information.”
This prospectus
only provides you with a general description of the securities we may
offer. Each time we sell securities, we will file with the SEC a
prospectus supplement that contains specific information about the terms of
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 below under the heading, “Where You Can Find More
Information.”
You
should rely on the information incorporated by reference or provided in this
prospectus or any prospectus supplement. We have authorized no one to
provide you with different information. We are not making an offer of
these securities in any jurisdiction where the offer is not
permitted. You should not assume that the information contained in or
incorporated by reference in this prospectus or a prospectus supplement is
accurate as of any date other than their respective dates.
Except as otherwise
indicated, references in this prospectus to “Caterpillar,” the “company,” “we,”
“us” and “our” refer to Caterpillar Inc. and its subsidiaries.
Page 4
Caterpillar,
through its employees and dealers, designs, manufactures, markets, finances and
provides support for Caterpillar machines and engines. We believe our
products make progress possible around the world.
Our products and
services fall into three principal lines of business:
Machinery: A
principal line of business which includes the design, manufacture, marketing and
sales of construction, mining and forestry machinery - track and wheel tractors,
track and wheel loaders, pipelayers, motor graders, wheel tractor-scrapers,
track and wheel excavators, backhoe loaders, log skidders, log loaders,
off-highway trucks, articulated trucks, paving products, skid steer loaders,
underground mining equipment, tunnel boring equipment and related parts. Also
includes logistics services for other companies and the design, manufacture,
remanufacture, maintenance and services of rail-related products.
Engines: A principal line of
business including the design, manufacture, marketing and sales of engines for
Caterpillar machinery; electric power generation systems; on-highway vehicles
and locomotives; marine, petroleum, construction, industrial, agricultural and
other applications; and related parts. Also includes remanufacturing of
Caterpillar engines and a variety of Caterpillar machine and engine components
and remanufacturing services for other companies. Reciprocating engines meet
power needs ranging from 10 to over 21,700 horsepower (8 to over 16 000
kilowatts). Turbines range from 1,600 to 30,000 horsepower (1 200 to
22 000 kilowatts).
Financial
Products: A principal line of business consisting primarily of
Caterpillar Financial Services Corporation (“Cat Financial”), Caterpillar
Insurance Holdings, Inc. (“Cat Insurance”) and their respective subsidiaries.
Cat Financial provides a wide range of financing alternatives to customers and
dealers for Caterpillar machinery and engines, Solar gas turbines, as well as
other equipment and marine vessels. Cat Financial also extends loans to
customers and dealers. Cat Insurance provides various forms of insurance to
customers and dealers to help support the purchase and lease of our
equipment.
We
maintain a website at www.cat.com where general
information about us is available. We are not incorporating the contents of the
website into this prospectus. Our principal executive offices are located at 100
NE Adams Street, Peoria, Illinois 61629. Our telephone number is
(309) 675-1000.
An
investment in our securities involves risk. Before you invest in securities
issued by us, you should carefully consider the risks involved. Accordingly, you
should carefully consider:
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the
information contained in or incorporated by reference into this
prospectus;
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the
information contained in or incorporated by reference into any prospectus
supplement relating to specific offerings of
securities;
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the risks
described in our Annual Report on Form 10-K for our most recent fiscal
year and in any Quarterly Report on Form 10-Q which we have filed since
our most recent Annual Report on Form 10-K, each of which is incorporated
by reference into this prospectus;
and
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other risks
and other information that may be contained in, or incorporated by
reference from, other filings we make with the SEC, including in any
prospectus supplement relating to specific offerings of
securities.
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The discussion of
risks related to our business contained in or incorporated by reference into
this prospectus or into any prospectus supplement comprises material risks of
which we are aware. Our business, financial condition, results of operations and
prospects could be materially adversely affected by any of these risks. The
trading price of our securities could decline due to any of these risks, and you
could lose all or part of your investment.
Page 5
Some of the
information included or incorporated by reference in this prospectus contains
“forward-looking statements,” or statements related to future
events. Forward-looking statements often address our expected future
business and financial performance, and often contain words such as “may,”
“will,” “would,” “could,” “should,” “believes,” “estimates,” “projects,”
“potential,” “expects,” “plans,” “anticipates,” “intends,” “continues” and other
similar terminology. For us, particular uncertainties that could
adversely or positively affect our future results include:
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(i)
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Adverse
changes in general economic
conditions;
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(ii)
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Adverse
changes in the industries Caterpillar serves including construction,
infrastructure, mining, energy, marine and electric power
generation;
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(iii)
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Caterpillar’s
ability to manage material, including steel, and freight
costs;
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(iv)
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Caterpillar’s
ability to generate cash from operations, secure external funding for its
operations and manage its liquidity
needs;
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(v)
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Material
adverse changes in customers’ access to liquidity and
capital;
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(vi)
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Currency
exchange or interest rates changes;
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(vii)
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Political
instability;
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(viii)
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Market
acceptance of the company's products and
services;
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(ix)
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Significant
changes in the competitive
environment;
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(x)
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Epidemic
diseases;
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(xi)
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Severe
changes in weather conditions negatively impacting
operations;
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(xii)
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Changes in
law, regulations and tax rates; and
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(xiii)
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Other general
economic, business and financing conditions and factors described in more
detail in our third quarter report on Form 10-Q filed with the SEC on
October 30, 2009 and in our future SEC filings, which are incorporated by
reference in this prospectus.
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These uncertainties
may cause our actual future results to be materially different than those
expressed in our forward-looking statements. We do not undertake to
update our forward-looking statements.
Unless otherwise
specified in a prospectus supplement accompanying this prospectus, the net
proceeds from the sale of the securities to which this prospectus relates will
be used for general corporate purposes. General corporate purposes
may include repayment of debt, acquisitions, additions to working capital,
capital expenditures and investments in our subsidiaries. Net
proceeds may be temporarily invested prior to use.
The ratio of
earnings to fixed charges for the periods indicated below were as
follows:
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Ratio
of Earnings to Fixed Charges
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Nine
Months
Ended
September
30, 2009
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Year
Ended December 31,
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2008
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2007
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2006
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2005
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2004
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1.3
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3.8
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4.2
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4.5
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4.5
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4.2
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Page 6
These ratios
include Caterpillar and its consolidated subsidiaries. Earnings are
determined by adding consolidated profit before taxes and fixed charges
excluding capitalized interest. Fixed charges consist of interest
expense, an estimated amount of rental expense that is deemed to be
representative of the interest factor, and capitalized
interest. Neither Caterpillar nor any of its consolidated
subsidiaries had any outstanding shares of preferred stock for the periods shown
above. Accordingly, the ratio of combined fixed charges and
preference dividends to earnings is identical to the ratio of earnings to fixed
charges for the periods shown above.
We
may offer under this prospectus our debt securities, common stock, preferred
stock, and warrants to purchase debt securities or common stock, or any
combination of the foregoing, either separately or together in any combination
and as a separate series.
The following
description of the terms of these securities sets forth some of the general
terms and provisions of securities that we may offer. The particular terms of
securities offered by any prospectus supplement and the extent, if any, to which
the general terms set forth below do not apply to those securities, will be
described in the related prospectus supplement. In addition, if we offer
securities in any combination of the above securities, the terms of such
combined securities will be described in the applicable prospectus
supplement. If the information contained in the prospectus supplement
differs from the following description, you should rely on the information in
the prospectus supplement.
We
have provided below a summary description of our debt
securities. This description is not complete and is qualified in its
entirety by reference to the full text of our Indenture dated as of May 1, 1987,
as amended and supplemented, between us and U.S. Bank National Association, as
successor trustee. You should read the full text of our
Indenture.
We
will issue the debt securities under an indenture dated as of May 1, 1987,
as amended and supplemented, between us and U.S. Bank National Association, the
successor trustee. This prospectus briefly outlines some of the
indenture provisions. See "Where You Can Find More Information" on how to locate
the indenture and the supplements. You may also review the indenture at the
Trustee's offices located in New York, New York.
The indenture does
not limit the amount of debt securities that may be issued and each series of
debt securities may differ as to its terms. The debt securities may be issued up
to the principal amount that may be authorized by us and may be in any currency
or currency unit designated by us.
The debt securities
will be unsecured and unsubordinated and will rank equally with all our
unsecured and unsubordinated indebtedness. The debt securities will not be
subject to any conversion, amortization, or sinking fund. It is anticipated that
the debt securities will be "book-entry," represented by a permanent global
certificate registered in the name of The Depository Trust Company or its
nominee. However, we reserve the right to issue the securities in certificate
form registered in the name of the security holders.
For current
information on our debt outstanding, see our most recent Form 10-K and our
Form 8-K filed with the SEC on May 14, 2009. See "Where You Can
Find More Information."
Exchange,
Registration, Transfer, and Payment
Principal and
interest on the debt securities will be payable, and the exchange or transfer of
debt securities will be registrable at a location designated in the prospectus
supplement. No service charge will be applied for a registration of transfer or
exchange of debt securities except to cover tax or any governmental
charge.
Page 7
Certain Restrictive Covenants
Unless the
applicable prospectus supplement otherwise provides, we will be required to
comply with certain restrictive covenants described below. These
covenants apply to us and our Restricted Subsidiaries.
What
is a Restricted or Unrestricted Subsidiary?
A
"Restricted Subsidiary" is defined as any subsidiary, other than an Unrestricted
Subsidiary, and any Unrestricted Subsidiary designated by our Board of Directors
after May 1, 1987 as a Restricted Subsidiary.
An “Unrestricted
Subsidiary" is defined as:
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any
subsidiary acquired or organized by us after May 1, 1987, as long as
that subsidiary is not a successor to a Restricted
Subsidiary;
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any
subsidiary with principal business and assets located outside the United
States (its territories and possessions) and
Canada;
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any
subsidiary with the principal business of financing our dealers and
distributors, as well as acquisitions and dispositions of our products by
dealers, distributors, or other
customers;
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any
subsidiary with the principal business of owning, leasing, dealing in or
developing real property; and
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any
subsidiary with substantially all assets consisting of securities of
subsidiaries described above.
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Other
Definitions
Important
Property: means any manufacturing plants or facilities of us
or any Restricted Subsidiary located in the United States, Canada, or Puerto
Rico having a gross book value (without deduction for depreciation) in excess of
1% of Consolidated Net Tangible Assets, other than any plant or other facility
our Board believes is not important to our business as a whole.
Consolidated Net Tangible
Assets: means the total of all assets appearing on the
consolidated balance sheet of Caterpillar and its consolidated subsidiaries
prepared in accordance with accounting principles generally accepted in the
United States of America, excluding the sum of (1) all current liabilities
and (2) all goodwill, patents, copyrights, trademarks and other like
intangibles.
Secured Debt: means
indebtedness secured by a mortgage, pledge, lien, security interest or
encumbrance on:
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any Important
Property of Caterpillar or any Restricted Subsidiary;
or
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any shares of
stock or indebtedness of a Restricted
Subsidiary.
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Value: means with
respect to a Sale and Leaseback Transaction, an amount equal to the greater
of:
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the net
proceeds of the sale of the property leased pursuant to the Sale and
Leaseback Transaction; or
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the fair
value of the property at the time of the Sale and Leaseback Transaction,
as determined by our Board of
Directors.
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In either case, the
amount derived is first divided by the term of the lease and then multiplied by
the number of years remaining on the lease at the time of
determination.
Restrictions
on Secured Debt
The indenture
prohibits us and our Restricted Subsidiaries from creating Secured Debt (without
securing the debt securities equally and ratably with Secured Debt), with the
following exceptions:
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certain
mortgages, pledges, liens, security interests or encumbrances to secure
payment of all or part of the cost of acquisition, construction or
improvement of our property or the property of a Restricted
Subsidiary;
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mortgages,
pledges, liens, security interests or encumbrances on property acquired,
whether or not assumed by us or a Restricted
Subsidiary;
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Page 8
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mortgages,
pledges, liens, security interests or encumbrances on property, stock, or
indebtedness of a Restricted Subsidiary at the time it becomes
such;
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mortgages,
pledges, liens, security interests or encumbrances on property of a
corporation merged with us or a Restricted Subsidiary or at the time of a
disposition of substantially all of the property of another corporation to
us or a Restricted Subsidiary;
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mortgages,
pledges, liens, security interests, or encumbrances on our property or the
property of a Restricted Subsidiary in favor of a governmental entity
pursuant to contract or statute or to secure certain
indebtedness;
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any
extension, renewal or replacement of any mortgage, pledge, lien or
encumbrance referred to above; or
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any mortgage,
pledge, lien, security interest, or encumbrance securing debt owed by us
or a Restricted Subsidiary to us or a Restricted
Subsidiary.
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In
addition to these exceptions, we or a Restricted Subsidiary may create, assume,
or guarantee other Secured Debt without securing the debt securities if the
total amount of Secured Debt outstanding and value of Sale and Leaseback
Transactions at the time does not exceed 10% of Consolidated Net Tangible
Assets.
Restrictions
on Sale and Leaseback Transactions
Neither we nor any
Restricted Subsidiary can sell or transfer (except to us or a Restricted
Subsidiary) any Important Property we own with the intention of taking back a
lease on the property, except for a lease not exceeding three years, with the
following exceptions:
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if we or a
Restricted Subsidiary could incur Secured Debt equal to the amount
received on a sale or transfer secured by a mortgage on the property to be
leased without equally and ratably securing the debt securities;
or
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if we or a
Restricted Subsidiary apply an amount equal to the value of the property
leased to the retirement, within 120 days after the effective date of
the arrangement, of indebtedness for money borrowed by us or a Restricted
Subsidiary recorded as funded debt as of the date of its creation and
which, in the case of indebtedness of us, is not subordinated in right of
payment to the prior payment of the debt securities. The amount applied to
the retirement of that indebtedness shall be reduced by (i) the
principal amount of any debt securities delivered within 120 days of
the effective date to the Trustee for retirement and cancellation, and
(ii) the principal amount of the indebtedness, other than debt
securities, retired by us or a Restricted Subsidiary within 120 days
of the effective date of the
arrangement.
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Restriction
on Transfer of Important Property
Neither we nor a
Restricted Subsidiary can transfer Important Property to an Unrestricted
Subsidiary except in limited circumstances. The transfer can occur if we apply
an amount equal to the fair value of the property at the time of transfer (as
determined by our Board of Directors) to the retirement of indebtedness of us or
a Restricted Subsidiary that is recorded as funded debt and is not subordinated
in right of payment to the debt securities. The debt retirement must occur
within 120 days of the transfer. No such retirement may be by payment at
maturity or under a mandatory prepayment provision.
Events
of Default
Unless we indicate
otherwise in a prospectus supplement, the following events are defined in the
indenture as "Events of Default" regarding the debt securities of any
series:
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failure to
pay principal of or premium on any debt securities when
due;
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failure to
pay interest on any debt securities when due, continued for
60 days;
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failure to
deposit any sinking fund payment when
due;
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failure to
perform any other covenant in the indenture for 60 days after we have
received written notice of the
failure;
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certain
events in bankruptcy, insolvency or reorganization;
and
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any other
Event of Default stipulated.
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Page 9
Unless stated
otherwise in a prospectus supplement, any Event of Default on a particular
series of debt securities is not necessarily an Event of Default on another
series of debt securities.
If
an Event of Default occurs on outstanding debt securities of a particular series
and continues, the Trustee or holders of at least 25% of that series' debt
securities may declare the principal amount of all debt securities in the series
due and payable. Under certain circumstances, holders of a majority of the debt
securities in the series may rescind that declaration.
The Trustee must
within 90 days after a default occurs notify the holders of debt securities
of that series of the default if we have not remedied it. The Trustee may
withhold notice to the holders of any default (except in the payment of
principal or interest) if it in good faith considers such withholding to be in
the interest of holders. We are required to file an annual certificate with the
Trustee, signed by an officer, about any default by us under any provisions of
the indenture.
Subject to the
provisions of the indenture relating to its duties in case of default, the
Trustee shall be under no obligation to exercise any of its rights or powers
under the indenture at the request, order or direction of any holders unless
such holders offer the Trustee reasonable indemnity. Subject to the provisions
for indemnification, the holders of a majority in principal amount of the debt
securities of a series may direct the time, method and place of conducting any
proceedings for any remedy available to, or exercising any trust or power
conferred on, the Trustee with respect to such debt securities.
Modification
of Indenture
Under the
indenture, our rights and obligations and the rights of the holders of debt
securities may be changed. Certain changes require the consent of the holders of
not less than 66 2/3% in aggregate principal amount of the outstanding debt of
all series to be affected. However, the following changes may not be made
without the consent of each holder of the debt securities:
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changes to
the stated maturity date of the principal or any interest
installment;
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reductions in
the principal amount or interest
due;
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changes to
the place or currency regarding payment of
principal;
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impairment of
the right to institute suit for the enforcement of
payment;
|
|
·
|
reduction in
the stated percentage of holders necessary to modify the indenture;
or
|
|
·
|
modifications
to any of these requirements or to reduce the percentage of outstanding
debt securities necessary to waive compliance with certain provisions of
the indenture or for the waiver of certain
defaults.
|
Consolidation,
Merger, or Sale
We
cannot merge with another company or sell or lease substantially all of our
property to another company unless:
|
·
|
we are the
continuing corporation or the successor corporation is a domestic
corporation and expressly assumes the payment of principal of and interest
on the debt securities and the performance and observance of all the
covenants and conditions of the indenture binding on
us;
|
|
·
|
we, or the
successor corporation, are not immediately after the merger,
consolidation, or sale in default in the performance of a covenant or
condition in the indenture; and
|
|
·
|
if as a
result of the merger, consolidation or sale we become subject to a
mortgage, pledge, lien, security interest or other encumbrance not
permitted by the indenture, we or the successor corporation take steps
necessary to secure the debt securities equally and ratably with all
indebtedness secured.
|
Defeasance
Under certain
circumstances we may be discharged from our obligations on the debt securities
of a series at any time before the stated maturity if we deposit with the
Trustee money or certain equivalents sufficient to pay principal of and interest
on the debt securities. One condition for such defeasance is that we must
deliver to the Trustee an opinion of counsel that holders of the debt securities
will not recognize income, gain or loss for federal income tax purposes as a
result of the defeasance.
Page 10
We
have provided below a summary description of our
capital stock. This description is not complete and is
qualified in its entirety by reference to the full text of our Restated
Certificate of Incorporation and Bylaws, and the applicable certificate of
designations for any series of preferred stock that we may issue. You
should read the full text of our Restated Certificate of Incorporation and
Bylaws, any applicable certificate of designations, and the provisions of
applicable Delaware law.
The authorized
common stock of the Company consists of 900,000,000 shares of common stock, par
value $1.00 per share. At October 30, 2009, there were
623,584,946 shares of common stock issued and
outstanding.
All issued and
outstanding shares of common stock of the Company, including the shares of
common stock offered pursuant to this prospectus, are or will be fully paid and
non-assessable. Holders of common stock have no preemptive,
subscription or conversion rights and are not liable for further calls or
assessments. Subject to the prior right of any future series of
preferred stock, holders of common stock are entitled to receive such dividends
as may be declared by the Board of Directors out of funds legally available and
to share ratably in the assets available for distribution upon liquidation. Each
share of common stock is entitled to one vote at all meetings of stockholders.
The holders of common stock are not entitled to cumulative voting rights in the
election of directors.
The common stock is
listed on the New York and Chicago Stock Exchanges in the United
States. In addition, the common stock or stock equivalents are traded
on stock exchanges in Belgium, France, Germany, Great Britain and
Switzerland. The Transfer Agent and Registrar for the common stock is
BNY Mellon Shareowner Services.
Our restated
certificate of incorporation authorizes our board of directors to cause
preferred stock to be issued in one or more series, without stockholder
action. They are authorized to issue up to 5,000,000 shares of
preferred stock, with par value of $1.00 per share, and can determine the number
of shares of each series, as well as the rights, preferences and limitations of
each series. We may amend the certificate of incorporation to
increase the number of authorized shares of preferred stock in a manner
permitted by the certificate of incorporation and Delaware law. As of
the date of this prospectus, no preferred stock is outstanding.
The particular
terms of any series of preferred stock offered by us will be described in the
prospectus supplement relating to that series of preferred
stock. Those terms relating to the series of preferred stock offered
may include:
|
·
|
the number of
shares of the preferred stock being
offered;
|
|
·
|
the title and
liquidation preference per share of the preferred
stock;
|
|
·
|
the purchase
price of the preferred stock;
|
|
·
|
the dividend
rate or method for determining the dividend
rate;
|
|
·
|
the dates on
which dividends will be paid;
|
|
·
|
whether
dividends on the preferred stock will be cumulative or non-cumulative and,
if cumulative, the dates from which dividends shall start to
accumulate;
|
|
·
|
the voting
rights of the preferred stock;
|
|
·
|
whether the
preferred stock will be convertible into or exchangeable for other
securities;
|
|
·
|
any
redemption or sinking fund provisions applicable to the preferred
stock;
|
|
·
|
any
securities exchange on which the preferred stock may be listed;
and
|
|
·
|
any other
rights and restrictions applicable to the preferred
stock.
|
Page 11
The following
summary is not complete. You should refer to the certificate of
designations relating to any series of preferred stock for the complete terms of
that preferred stock. The certificate of designations will be filed
with the SEC at the time of the offering of the preferred
stock. Unless otherwise specified in the prospectus supplement, if we
liquidate, dissolve or wind-up our business, each series of preferred stock will
have the same rank as to dividends and distributions as each other series of
preferred stock we may issue in the future. Preferred stock will have
no pre-emptive rights.
We
will appoint a transfer agent, registrar, and dividend disbursement agent for
the preferred stock. The registrar for the preferred stock will send
notices to the holders of the preferred stock of any meeting to which those
holders will have the right to elect directors or to vote on any
matter.
Shares of the
Company’s authorized and unissued common stock and preferred stock could (within
the limits imposed by applicable law and any applicable rules of the New York
Stock Exchange) be issued in one or more transactions or preferred stock could
be issued with terms, provisions and rights which would make a takeover of the
Company more difficult or more costly and, therefore, less
likely. For example, the Board may issue such capital stock to a
holder or holders who might thereby obtain sufficient voting power, either by
voting with the common stock or separately as a class, to defeat or delay a
proposed business combination which may be opposed by the Board, or to assure
that any proposal to remove directors, or to alter, amend or repeal certain
provisions in the Company’s Restated Certificate of Incorporation would not
receive the required supermajority stockholder vote or any class vote which
would be required to effect such changes. Any such issuance of
additional stock could be effected by the Board acting alone without further
stockholder approval.
Set forth below are
descriptions of certain provisions of the Company’s Restated Certificate of
Incorporation and Bylaws which could make more difficult certain unsolicited or
hostile attempts to take over the Company.
The Company’s
Restated Certificate of Incorporation provides that the amendment of certain
provisions in the Certificate and Bylaws, including the provisions discussed in
the following three paragraphs, requires the affirmative vote of the holders of
75% of the outstanding stock of the Company entitled to vote generally in the
election of directors voting as a single class (“75% Stockholder
Vote”).
The Company’s Board
of Directors is divided into three classes with staggered three-year
terms. At each annual meeting of stockholders, one of the three
classes is subject to election, with the remaining directors continuing in
office.
The Company’s
Bylaws also provide that no action shall be taken by stockholders by written
consent and that special meetings of the stockholders may be called only by the
Board of Directors pursuant to a resolution approved by a majority of the entire
Board of Directors or by the Chairman of the Board.
In
addition, the Restated Certificate of Incorporation and Bylaws provide that
directors may be removed without cause but only by a 75% Stockholder Vote and
that vacancies on the Board of Directors shall be filled by the affirmative vote
of a majority of the remaining directors then in office and not by the
stockholders. The Company’s Restated Certificate and Bylaws further
provide certain advance notice requirements in connection with stockholder
nominations for the election of directors and other matters to be properly
brought before an annual meeting by a stockholder.
Delaware’s
anti-takeover law (the “Anti-Takeover Law”) prevents, subject to certain
exceptions, certain Delaware corporations from engaging, under certain
circumstances, in a “business combination” (which includes a merger or sale of
more than 10% of the corporation’s assets) with any “interested stockholder” (a
stockholder who owns 15% or more of the corporation’s outstanding voting stock)
for three years following the date that such stockholder became an “interested
stockholder.” A Delaware corporation may “opt out” of the Anti-Takeover Law with
an express provision in its original certificate of incorporation or an express
provision in its certificate of incorporation or bylaws resulting from an
amendment approved by at least a majority of the outstanding voting
shares. The Company is a Delaware corporation that is covered by the
Anti-Takeover Law and has not “opted out” of its provisions.
Page 12
We
have provided below a summary description of warrants that we may
issue. This description is not complete and is qualified in its
entirety by reference to the full text of the applicable warrant
agreement. You should read the full text of any such warrant
agreement.
We
may issue warrants, in one or more series, for the purchase of debt securities
or shares of our common stock. Warrants may be issued independently
or together with our debt securities or common stock and may be attached to or
separate from any offered securities. In addition to this summary,
you should refer to the detailed provisions of the specific warrant agreement
for complete terms of the warrants. Unless otherwise specified in a
prospectus supplement accompanying this prospectus, each warrant agreement will
be between Caterpillar and a banking institution organized under the laws of the
United States or a state thereof as warrant agent. A form of warrant
agreement will be filed with the SEC as an exhibit to the Registration Statement
by post-effective amendment or a Current Report on Form 8-K.
The warrants will
be evidenced by warrant certificates. Unless otherwise specified in
the prospectus supplement, the warrant certificates may be traded separately
from the debt securities or common stock, if any, with which the warrant
certificates were issued. Warrant certificates may be exchanged for
new warrant certificates of different denominations at the office of an agent
that we will appoint. Until a warrant is exercised, the holder of a
warrant does not have any of the rights of a holder of our debt securities or
common stock and is not entitled to any payments on any debt securities or
common stock issuable upon exercise of the warrants.
A
prospectus supplement accompanying this prospectus relating to a particular
series of warrants to issue debt securities or common stock will describe the
terms of those warrants, including:
|
·
|
the title and
the aggregate number of warrants;
|
|
·
|
the offering
price for such warrants;
|
|
·
|
the debt
securities or common stock for which each warrant is
exercisable;
|
|
·
|
the date or
dates on which the right to exercise such warrants commence and
expire;
|
|
·
|
the price or
prices at which such warrants are
exercisable;
|
|
·
|
the terms of
any antidilution or other adjustment
provisions;
|
|
·
|
the currency
or currencies in which such warrants are
exercisable;
|
|
·
|
the periods
during which and places at which such warrants are
exercisable;
|
|
·
|
the terms of
any mandatory or optional call
provisions;
|
|
·
|
the price or
prices, if any, at which the warrants may be redeemed at the option of the
holder or will be redeemed upon
expiration;
|
|
·
|
the identity
of the warrant agent;
|
|
·
|
the
exchanges, if any, on which such warrants may be listed;
and
|
|
·
|
any
additional terms of such warrants.
|
You may exercise
warrants by payment to our warrant agent of the exercise price, in each case in
such currency or currencies as are specified in the warrant, and by giving your
identity and the number of warrants to be exercised. Once you pay our
warrant agent and deliver the properly completed and executed warrant
certificate to our warrant agent at the specified office, our warrant agent
will, as soon as practicable, forward securities to you in authorized
denominations or share amounts. If you exercise less than all of the
warrants evidenced by your warrant certificate, you will be issued a new warrant
certificate for the remaining amount of warrants.
Page 13
We
may sell the securities:
|
·
|
to or through
underwriters or dealers for resale;
|
|
·
|
through
agents; or
|
|
·
|
directly to
other purchasers.
|
The related
prospectus supplement will set forth the terms of the offering of the
securities, including the following:
|
·
|
the name or
names of any underwriters, dealers, or
agents;
|
|
·
|
the purchase
price and the proceeds we will receive from the
sale;
|
|
·
|
any
underwriting discounts or commissions and other items constituting
underwriters’ compensation; and
|
|
·
|
any initial
public offering price and any discounts or concessions allowed or paid to
dealers.
|
If
underwriters are used in the sale, the securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The
securities may be either offered to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a
syndicate. The obligations of the underwriters to purchase securities
will be subject to conditions precedent, and the underwriters will be obligated
to purchase all the securities of a series if any are purchased. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Securities may be
sold directly by us or through agents designated by us from time to
time. Any agent involved in the offer or sale of the securities in
respect of which this prospectus is delivered will be named, and any commissions
payable by us to that agent will be set forth in the related prospectus
supplement. Unless otherwise indicated in the related prospectus
supplement, any agent will be acting on a best efforts basis for the period of
its appointment.
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 the applicable prospectus supplement so indicates,
in connection with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including
in short sale transactions. If so, the third party may use securities
pledged by us or borrowed from us or others to settle those sales or to close
out any related open borrowings of stock, and may use securities received from
us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in such sale transactions will be an
underwriter and will be identified in the applicable prospectus
supplement.
Each series of debt
securities, preferred stock or warrants will be a new issue of securities with
no established trading market. Underwriters and agents may from time
to time purchase and sell the securities described in this prospectus and the
relevant prospectus supplement in the secondary market, but are not obligated to
do so. No assurance can be given that there will be a secondary
market for the securities or liquidity in the secondary market if one
develops. From time to time, underwriters and dealers may make a
market in the securities.
To
facilitate the offering of the securities, the underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of these
securities or any other securities the prices of which may be used to determine
payments on these securities. Specifically, the underwriters may
over-allot in connection with the offering, creating a short position in the
securities for their own accounts. In addition, to cover
over-allotments or to stabilize the price of the securities or of any other
securities, the underwriters may bid for, and purchase, the securities or any
other securities in the open market. Finally, in any offering of the
securities through a syndicate of underwriters, the underwriting syndicate may
reclaim selling concessions allowed to an underwriter or a dealer for
distributing the securities in the offering, if the syndicate repurchases
previously distributed securities in transactions to cover syndicate short
positions, in stabilization transactions or otherwise. Any of these
activities may stabilize or maintain the market price of the securities above
independent market levels. The underwriters are not required to
engage in these activities, and may end any of these activities at any
time.
Page 14
Underwriters named
in a prospectus supplement are, and dealers and agents named in a prospectus
supplement may be, deemed to be “underwriters” within the meaning of the
Securities Act of 1933, which we refer to as the Securities Act, in connection
with the securities offered thereby, and any discounts or commissions they
receive from us and any profit on their resale of the securities may be deemed
to be underwriting discounts and commissions under the Securities
Act.
Unless indicated in
the applicable prospectus supplement, we do not expect to apply to list the debt
securities, preferred stock or warrants on a securities exchange.
Agents and
underwriters may be entitled to indemnification by us against civil liabilities
arising out of this prospectus, including liabilities under the Securities Act,
or to contribution with respect to payments which the agents or underwriters may
be required to make relating to those liabilities.
Agents and
underwriters may be engaged in transactions with, or perform commercial or
investment banking or other services for us, our subsidiaries or affiliates, in
the ordinary course of business.
We
will estimate our expenses associated with any offering of debt securities,
preferred stock, common stock or warrants in the prospectus supplement relating
to such offering.
Unless otherwise
specified in the applicable prospectus supplement, issues of debt securities
will be book entry securities and will be cleared and settled through the
Depository Trust Company, or DTC , a securities depository. Upon
issuance, all book-entry securities of the same issue will be represented by one
or more fully registered global securities. Each global security will
be deposited with, or on behalf of, DTC and will be registered in the name of
DTC or a nominee of DTC. DTC will thus be the only registered holder
of these securities and will be considered the sole owner of the
securities.
Purchasers may only
hold interests in the global securities through DTC if they are participants in
the DTC system. Purchasers may also hold interests through a
securities intermediary – a bank, brokerage house or other institution that
maintains securities accounts for customers – that has an account with DTC or
its nominee. DTC will maintain accounts showing the securities
holdings of its participants, and these participants will in turn maintain
accounts showing the securities holdings of their customers. Some of
these customers may themselves be securities intermediaries holding securities
for their customers. Thus, each beneficial owner of a book-entry
security will hold that security directly through a hierarchy of intermediaries,
with DTC at the top and the beneficial owner’s own securities intermediary at
the bottom.
The securities of
each beneficial owner of a book-entry security will be evidenced solely by
entries on the books of the beneficial owner’s securities
intermediary. The actual purchaser of the securities will generally
not be entitled to have the securities represented by the global securities
registered in its name and will not be considered the owner. In most
cases, a beneficial owner will also not be able to obtain a paper certificate
evidencing the holder’s ownership of securities. The book-entry
system for holding securities eliminates the need for physical movement of
certificates. The laws of some jurisdictions require some purchasers
of securities to take physical delivery of their securities in definitive or
paper form. These laws may impair the ability to transfer book-entry
securities.
Unless otherwise
specified in the prospectus supplement with respect to a series of debt
securities, beneficial owners of book-entry securities represented by a global
security may exchange the securities for definitive or paper securities only
if:
|
·
|
DTC is
unwilling or unable to continue as a depository for such global security
and Caterpillar is unable to find a qualified replacement for DTC within
90 days;
|
|
·
|
At any time,
DTC ceases to be a “clearing agency” registered under the Securities Act
of 1934;
|
|
·
|
Caterpillar,
in its sole discretion, decides to allow some or all book-entry securities
to be exchangeable for definitive or paper securities in registered form;
or
|
|
·
|
For debt
securities, there is a continuing Event of Default as further described in
the “Description of Debt Securities” starting on page
7.
|
Page 15
Any global security
that is exchangeable will be exchangeable in whole for definitive securities in
registered form with the same terms, and in the case of debt securities, in an
equal aggregate principal amount in denominations of $1,000 and whole multiples
of $1,000. Definitive securities will be registered in the name or
names of the person or persons specified by DTC in a written instruction to the
registrar of the securities. DTC may base its written instruction
upon directions it receives from its participants.
In
this prospectus and the accompanying prospectus supplement for book-entry
securities, references to actions taken by security holders will mean actions
taken by DTC upon instructions from its participants, and references to payments
and notices of redemption to security holders will mean payments and notices of
redemption to DTC as the registered holder of the securities for distribution to
participants in accordance with DTC’s procedures.
DTC is a limited
purpose trust company organized under the laws of the State of New York, a
member of the Federal Reserve System, a “clearing corporation” within the
meaning of the New York Uniform Commercial Code and a “clearing agency”
registered under Section 17A of the Securities Exchange Act. The
rules applicable to DTC and its participants are on file with the
SEC.
Caterpillar will
not have any responsibility or liability for any aspect of the records relating
to, or payments made on account of, beneficial ownership interests in the
book-entry securities or for maintaining, supervising or reviewing any records
relating to the beneficial ownership interests.
Certain legal
matters will be passed upon for Caterpillar by Joseph H. Currin, Esq., Corporate
Counsel, Caterpillar Inc. Mr. Currin, along with members of his
family, owns and has other interests in shares of common stock of
Caterpillar.
The consolidated
financial statements incorporated in this Prospectus by reference to Caterpillar
Inc.’s Current Report on Form 8-K dated May 14, 2009 and management's assessment
of the effectiveness of internal control over financial reporting (which is
included in Management's Report on Internal Control over Financial Reporting)
incorporated in this Prospectus by reference to the Annual Report on Form 10-K
of Caterpillar Inc. for the year ended December 31, 2008, have been so
incorporated in reliance on the report (which contains an explanatory paragraph
on the effectiveness of internal control over financial reporting due to the
exclusion of the internal control over financial reporting
of Caterpillar Japan Ltd. because Caterpillar Japan Ltd. was
consolidated by the Company on August 1, 2008) of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, given on the authority of said
firm as experts in auditing and accounting.
We
file annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public
from the SEC’s web site at http://www.sec.gov. You
may also read and copy any document we file at the SEC’s public reference room
in Washington, D.C. located at 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference room. Our common stock is listed on the New
York Stock Exchange (the “NYSE”). You may also inspect the
information we file with the SEC at the NYSE’s offices at 20 Broad Street, New
York, New York 10005. Information about us, including our SEC
filings, is also available at our Internet site at http://www.cat.com. However,
the information on our Internet site is not a part of this prospectus or any
prospectus supplement.
Page 16
Rather than include
certain information in this prospectus that we have already included in
documents filed with the SEC, we are incorporating this information by
reference, which means that we are disclosing important information to you by
referring you to those publicly filed documents that contain such
information. The information incorporated by reference is considered
to be part of this prospectus. Accordingly, we incorporate by
reference the following documents filed with the SEC by us:
|
|
·
|
Annual Report
on Form 10-K for the fiscal year ended December 31, 2008 filed on February
20, 2009;
|
|
|
·
|
Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 2009 filed on
May 1, 2009;
|
|
|
·
|
Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30, 2009 filed on
July 31, 2009;
|
|
|
·
|
Amendment No.
1 to our Quarterly Report on Form 10-Q/A for the fiscal quarter ended June
30, 2009 filed on August 12, 2009;
|
|
|
·
|
Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30, 2009 filed
on October 30, 2009;
|
|
|
·
|
Current
Report on Form 8-K/A filed on January 26,
2009;
|
|
|
·
|
Current
Report on Form 8-K filed on January 26, 2009 (incorporates Items 1.01
and 2.03 only);
|
|
|
·
|
Current
Report on Form 8-K filed on April 6,
2009;
|
|
|
·
|
Current
Report on Form 8-K filed on April 7,
2009;
|
|
|
·
|
Current
Report on Form 8-K/A filed on April 8,
2009;
|
|
|
·
|
Current
Report on Form 8-K filed on April 13,
2009;
|
|
|
·
|
Current
Report on Form 8-K filed on May 14,
2009;
|
|
|
·
|
Current
Report on Form 8-K/A filed on June 15,
2009;
|
|
|
·
|
Current
Report on Form 8-K filed on September 15,
2009;
|
|
|
·
|
Current
Report on Form 8-K filed on September 23,
2009;
|
|
|
·
|
Current
Report on Form 8-K filed on October 5, 2009;
and
|
|
|
·
|
Current
Report on Form 8-K filed on October 22,
2009.
|
Neither Current
Reports on Form 8-K furnished under Item 2.02 of Form 8-K, nor Current Reports
furnished under Item 7.01, of Form 8-K are incorporated by reference in this
prospectus.
We
incorporate by reference additional documents that we may file with the SEC
after the date of this prospectus, which may include Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and proxy
statements. All documents that we subsequently file pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statement contained in
a document incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement in a subsequently filed document which
also is incorporated by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus.
We
are not incorporating by reference any documents or information deemed to have
been furnished and not filed in accordance with SEC rules.
You may request a
copy of any or all of the documents referred to above that may have been or may
be incorporated by reference into this prospectus at no cost to you by writing
or telephoning us at the following address:
Caterpillar
Inc.
100 N.E. Adams
Street
Peoria, Illinois
61629
Attn: Corporate
Secretary
(309)
675-1000
Page 17
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a
statement setting forth the estimated expenses of Caterpillar in connection with
the offering described in this registration statement.
|
SEC
Registration Fee
|
$
|
*
|
|
|
Printing
Expenses
|
+
|
||
|
Legal Fees
and Expenses
|
5,000
|
||
|
Audit Fees
and Expenses
|
35,000
|
||
|
Trust Fees
and Expenses
|
+
|
||
|
Miscellaneous
Expenses
|
+
|
||
|
Total
|
$
|
+
|
|
|
*
|
In accordance
with Rules 456(b) and 457(r), we are deferring payment of the registration
fee for the securities offered by this prospectus.
|
||
|
+
|
Estimated
expenses are not presently
known.
|
||
The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate incurring in connection with the offering of securities under this registration statement. Information regarding estimated expenses of issuance and distribution of each identified class of securities being registered will be provided at the time information as to such class is included in a prospectus supplement in accordance with Rule 430B.
Item
15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware
Law on Indemnification
Section 145 of the
Delaware General Corporation law (the “DGCL”) allows us to indemnify directors
and officers as well as other employees against expenses (including attorneys’
fees), judgments, fines, and settlement amounts for certain actions or
proceedings (other than a “derivative” action – action by or in on behalf of the
company) if they acted in good faith and in the best interests of the
company. If the matter is a criminal proceeding, indemnification
would only follow if the individual had no reasonable cause to believe their
conduct was unlawful.
A
similar standard applies to derivative actions, except that indemnification only
extends to expenses (including attorneys’ fees) incurred in connection with
defense or settlement of an action. If the individual has been found
liable to the company, indemnification requires court approval.
Section 102(b)(7)
of the DGCL allows us to provide in our certificate of incorporation that a
director shall not be personally liable to the company or its shareholders for
monetary damages for a breach of fiduciary duty unless the breach: (i) relates
to the duty of loyalty; (ii) involves intentional misconduct or knowing
violation of law; (iii) involves payment of unlawful dividends, stock purchases
or redemptions; or (iv) involves a transaction from which the director derived
an improper personal benefit.
Caterpillar
By-Laws and Certificate of Incorporation
Under Article V of
our By-Laws, we agree to indemnify officers and directors to the full extent
permitted by Delaware law. In addition, our board of directors may in
its discretion indemnify any person other than an officer or director made a
party to any action by virtue of their employment with
Caterpillar. Article Ninth of our Restated Certificate of
Incorporation provides for indemnification of directors consistent with Section
102(b)(7) of the DGCL. We also maintain directors’ and officers’
liability insurance in the amounts and subject to the conditions set forth in
those policies.
Page 18
Item
16. EXHIBITS.
The attached
Exhibit Index is incorporated herein by reference.
Item
17. UNDERTAKINGS.
|
(a)
|
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 this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the 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 the undertakings set forth in 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 periodic
reports filed by the registrant pursuant to Sections 13 or 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference
into 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.
|
||||
|
(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)
|
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
|
||||
Page 19
|
(ii)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by
Section 10(a) of the Securities Act 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.
|
|||
|
(5)
|
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.
|
|||
|
(b)
|
The
undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
|
|||
|
(c)
|
Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described under Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such
issue.
|
|||
Page 20
|
SIGNATURES
|
|||
|
Pursuant
to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Peoria, State of Illinois on the 3rd
day of November, 2009.
|
|||
|
CATERPILLAR
INC.
(Registrant)
|
|||
|
By:
|
/s/
James B. Buda
|
||
|
James B.
Buda, Secretary
|
|||
|
Pursuant
to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and
on the dates indicated.
|
|||
|
November 3,
2009
|
/s/
James W. Owens
|
Chairman of
the Board, Director
and Chief
Executive Officer
|
|
|
(James W.
Owens)
|
|||
|
November 3,
2009
|
/s/
David B. Burritt
|
Vice
President and
Chief
Financial Officer
|
|
|
(David B.
Burritt)
|
|||
|
November 3,
2009
|
/s/
Bradley M. Halverson
|
Controller
|
|
|
(Bradley M.
Halverson)
|
|||
|
November 3,
2009
|
/s/
Jananne A. Copeland
|
Chief
Accounting Officer
|
|
|
(Jananne A.
Copeland)
|
|||
Page 21
|
November 3,
2009
|
/s/
W. Frank Blount
|
Director
|
|
|
(W. Frank
Blount)
|
|||
|
November 3,
2009
|
/s/
John R. Brazil
|
Director
|
|
|
(John R.
Brazil)
|
|||
|
November 3,
2009
|
/s/
Daniel M. Dickinson
|
Director
|
|
|
(Daniel M.
Dickinson)
|
|||
|
November 3,
2009
|
/s/
John T. Dillon
|
Director
|
|
|
(John T.
Dillon)
|
|||
|
November 3,
2009
|
/s/
Eugene V. Fife
|
Director
|
|
|
(Eugene V.
Fife)
|
|||
|
November 3,
2009
|
/s/
Gail D. Fosler
|
Director
|
|
|
(Gail D.
Fosler)
|
|||
|
November 3,
2009
|
/s/
Juan Gallardo
|
Director
|
|
|
(Juan
Gallardo)
|
|||
|
November 3,
2009
|
/s/
David R. Goode
|
Director
|
|
|
(David R.
Goode)
|
|||
|
November 3,
2009
|
/s/
Peter A. Magowan
|
Director
|
|
|
(Peter A.
Magowan)
|
|||
|
November 3,
2009
|
/s/
William A. Osborn
|
Director
|
|
|
(William A.
Osborn)
|
|||
|
November 3,
2009
|
/s/
Charles D. Powell
|
Director
|
|
|
(Charles D.
Powell)
|
|||
|
November 3,
2009
|
/s/
Edward B. Rust, Jr.
|
Director
|
|
|
(Edward B.
Rust, Jr.)
|
|||
|
November 3,
2009
|
/s/
Susan C. Schwab
|
Director
|
|
|
(Susan C.
Schwab)
|
|||
|
|
Director
|
||
|
(Joshua I.
Smith)
|
Page 22
|
Exhibit
No.
|
Description
|
||
|
1.1*
|
Form of
Equity Securities Underwriting Agreement.
|
||
|
1.2*
|
Form of Debt
Securities Underwriting Agreement.
|
||
|
1.3*
|
Form of
Warrant Underwriting Agreement.
|
||
|
3.1
|
Restated
Certificate of Incorporation (incorporated by reference from Exhibit 3(i)
to the Form 10-Q filed for the quarter ended March 31, 1998).
|
||
|
3.2
|
Bylaws
amended and restated as of February 11, 2004 (incorporated by reference
from Exhibit 3.3 to the Form 10-Q filed for the quarter ended March 31,
2004).
|
||
|
3.3*
|
Form of
Certificate of Designations for Preferred Stock.
|
||
|
4.1
|
Indenture
dated as of May 1, 1987, between the Registrant and The First
National Bank of Chicago, as Trustee (incorporated by reference from
Exhibit 4.1 to Form S-3 (Registration No. 333-22041) filed
February 19, 1997).
|
||
|
4.2
|
First
Supplemental Indenture, dated as of June 1, 1989, between Caterpillar
Inc. and The First National Bank of Chicago, as Trustee (incorporated by
reference from Exhibit 4.2 to Form S-3 (Registration
No. 333-22041) filed February 19, 1997).
|
||
|
4.3
|
Appointment
of Citibank, N.A. as Successor Trustee, dated October 1, 1991, under
the Indenture, as supplemented, dated as of May 1, 1987 (incorporated
by reference from Exhibit 4.3 to Form S-3 (Registration
No. 333-22041) filed February 19, 1997).
|
||
|
4.4
|
Second
Supplemental Indenture, dated as of May 15, 1992, between Caterpillar
Inc. and Citibank, N.A., as Successor Trustee (incorporated by reference
from Exhibit 4.4 to Form S-3 (Registration No. 333-22041)
filed February 19, 1997).
|
||
|
4.5
|
Third
Supplemental Indenture, dated as of December 16, 1996, between
Caterpillar Inc. and Citibank, N.A., as Successor Trustee (incorporated by
reference from Exhibit 4.5 to Form S-3 (Registration
No. 333-22041) filed February 19, 1997).
|
||
|
4.6
|
Tri-Party
Agreement, dated as of November 2, 2006, between Caterpillar Inc.,
Citibank, N.A. and U.S. Bank National Association appointing U.S. Bank as
Successor Trustee under the Indenture dated as of May 1, 1987, as
amended and supplemented (incorporated by reference from Exhibit 4.6 to
the 2006 Form 10-K).
|
||
|
4.7*
|
Form of Debt
Security .
|
||
|
4.8*
|
Form of
Preferred Stock Certificate.
|
||
|
4.9*
|
Form of
Warrant Agreement.
|
||
|
4.10*
|
Form of
Warrant.
|
||
|
|
Legal Opinion
of Mr. Joseph H. Currin.
|
||
|
|
Computation
of Ratios of Earnings to Fixed Charges.
|
||
|
|
Consent of
PricewaterhouseCoopers LLP.
|
||
|
23.2
|
Consent of
Mr. Joseph H. Currin (included in Exhibit 5.1).
|
||
|
T-1 Statement
of Eligibility under the Trust Indenture Act of 1939 of US Bank National
Association.
|
|||
|
*
|
To be filed,
if necessary, as an exhibit to a post-effective amendment to this
registration statement or as an exhibit to a Current Report on Form 8-K to
be filed by the registrant in connection with a specific offering, and
incorporated herein by reference.
|
|||
Page 23