As
filed with the Securities and Exchange Commission on April 6, 2009.
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Registration
No. 333-
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ITRON,
INC.
(Exact
name of registrant as specified in its charter)
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Washington
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91-1011792
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
Number)
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2111
N. Molter Road
Liberty
Lake, Washington 99019
(509)
924-9900
(Address,
including zip code, and telephone number, including area code, of registrant's
principal executive offices)
Steven
M. Helmbrecht
Senior
Vice President and Chief Financial Officer
Itron,
Inc.
2111
N. Molter Road, Liberty Lake, Washington 99019
(509)
924-9900
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
to:
Andrew
Bor
Perkins
Coie LLP
1201
Third Avenue, Suite 4800
Seattle,
Washington 98101-3099
(206)
359-8000
Approximate date of commencement of
proposed sale to the public: From time to time after this
Registration Statement becomes effective as determined by market conditions and
other factors.
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 of 1933, 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 of 1933, 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 of 1933,
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 of
1933, 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.
| Large accelerated filer x | Accelerated filer ¨ | Non-accelerated filer ¨ | Smaller reporting company ¨ |
| (Do not check if a smaller reporting company) |
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 (2)
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Proposed
Maximum Offering Price Per Unit (2)
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Proposed Maximum
Aggregate Offering Price (2)
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Amount
of Registration Fee (1)
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Common
stock, no par value
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$
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$
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$
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Preferred
stock, no par value
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Debt
securities
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Convertible
debt securities
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Preferred
share purchase rights to purchase shares of Series R Junior Participating
Preferred Stock (3)
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Total
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$
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$
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$
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(1)
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In
accordance with Rules 456(b) and 457(r) under the Securities Act of
1933, the Registrant is deferring payment of all of the registration fee,
except for $271 that has already been paid with respect to securities that
were previously registered pursuant to the registration statement (No.
333-133026) initially filed by Itron, Inc. on April 6, 2006, and were not
sold thereunder on May 6, 2008. The previously paid registration fees will
be applied in lieu of a portion of the registration fees due from this
registration statement pursuant to Rule 457(p) under the Securities Act of
1933.
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(2)
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An
indeterminate aggregate initial offering price or number of the securities
of each identified class is being registered as may from time to time be
offered at indeterminate prices. Separate consideration may or
may not be received for securities that are issuable on exercise,
conversion or exchange of other securities or that are issued in units. No
separate consideration for the preferred share purchase rights will be
received.
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(3)
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An
indeterminate number of preferred share purchase rights to purchase shares
of our Series R Junior Participating Preferred Stock that attached to our
common stock under our rights agreement dated as of December 11, 2002 with
BNY Mellon Shareowner Services LLC as rights agent, is being registered as
may from time to time be attached to an offering of our common
stock.
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PROSPECTUS
Itron,
Inc.
Common
Stock
Preferred
Stock
Debt
Securities
Convertible
Debt Securities
We may,
from time to time, offer to sell common stock, preferred stock, debt securities,
or convertible debt securities. We refer to our common stock, preferred stock,
and debt securities and convertible debt securities collectively as the
"securities." The securities we may offer may be convertible into or exercisable
or exchangeable for our other securities. We may offer the securities
separately or together, in separate series or classes and in amounts, at prices
and on terms that will be determined at the time the securities are
offered. In addition, this prospectus may be used to offer securities
for the account of persons other than us.
We or any
selling securityholder may offer and sell these securities to or through one or
more underwriters, dealers and agents, or directly to purchasers, on a
continuous or delayed basis.
Our
common stock is quoted on the Nasdaq Global Select Market under the symbol
"ITRI."
Investing
in our securities involves risks. See "Risk Factors" on page 1 of
this prospectus and in the documents which are incorporated by reference
herein.
Neither
the Securities and Exchange Commission nor any state securities commission or
other regulatory body has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date
of this prospectus is April 6, 2009.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This
prospectus is part of a Registration Statement on Form S-3 that we filed
with the U.S. Securities and Exchange Commission, or SEC, using the "shelf"
registration process. By using a shelf registration statement, we
and/or certain selling securityholders may offer and sell, from time to time, in
one or more offerings, the securities described in this
prospectus. No limit exists on the aggregate amount of the securities
we may sell pursuant to the Registration Statement. This prospectus
describes some of the general terms that may apply to these
securities. The specific terms of any securities to be offered, and
any other information relating to a specific offering, will be set forth in a
supplement to this prospectus.
You
should rely only on the information contained in or incorporated by reference
into this prospectus or any applicable prospectus supplement. We have
not authorized anyone to provide you with different information. This
document may only be used where it is legal to sell these
securities. You should not assume that the information contained in
this prospectus, or in any prospectus supplement, is accurate as of any date
other than their respective dates.
We urge
you to read carefully both this prospectus and the applicable prospectus
supplement accompanying this prospectus, together with the information
incorporated herein by reference as described under the heading "Where You Can
Find More Information," before deciding whether to invest in any of the
securities being offered.
References
in this prospectus to "Itron," "we," "us" and "our" are to Itron, Inc. and its
subsidiaries. The term "you" refers to a prospective
investor. Our principal executive offices are located at 2111 N.
Molter Road, Liberty Lake, Washington 99019. Our phone number is
(509) 924-9900.
FORWARD-LOOKING INFORMATION
Our
disclosure and analysis in this prospectus, in any prospectus supplement, in the
documents incorporated by reference, and in some of our other public statements
contain "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995, as amended. This Act
provides a "safe harbor" for forward-looking statements to encourage companies
to provide prospective information about themselves so long as they identify
these statements as forward-looking and provide meaningful cautionary statements
identifying important factors that could cause actual results to differ from the
projected results. In some cases, you can identify forward-looking
statements by terminology such as "anticipate," "believe," "continue," "could,"
"estimate," "expect," "intend," "may," "might," "plan," "potential," "predict,"
"should," or "will," or the negative of those terms, or comparable
terminology.
Any or
all of our forward-looking statements in this prospectus, in any prospectus
supplement, in the documents incorporated by reference and in any other public
statements we make may turn out to be inaccurate. Forward-looking
statements reflect our current expectations or forecasts of future events or
results and are inherently uncertain. Inaccurate assumptions we might
make and known or unknown risks and uncertainties can affect the accuracy of our
forward-looking statements. Accordingly, no forward-looking statement
can be guaranteed and future events and actual or suggested results may differ
materially.
We
undertake no obligation to publicly update any forward-looking statements,
whether as a result of new information, future events, or
otherwise. You are advised, however, to consult any further
disclosures we make in our annual reports on Form 10-K, quarterly reports
on Form 10-Q, and current reports on Form 8-K, as well as in any
prospectus supplement relating to this prospectus and other public filings with
the SEC.
RISK FACTORS
Please
carefully consider the risk factors described in our periodic reports filed with
the SEC, which are included or incorporated by reference in this
prospectus. Before making an investment decision, you should
carefully consider these risks as well as other information we include or
incorporate by reference in this prospectus or include in any applicable
prospectus supplement. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may also impair our
business operations.
Risks
Related to our Common Stock
The
price of our common stock may fluctuate significantly, and this may make it
difficult for you to sell the common stock when you want or at prices you find
attractive.
The price
of our common stock on the Nasdaq Global Select Market has been, and is likely
to remain, highly volatile. We expect that the market price of our
common stock will continue to fluctuate. In addition, because our
convertible senior subordinated notes are convertible into our common stock,
volatility or depressed prices for our common stock could have a similar effect
on the trading price of our convertible senior subordinated notes.
Our stock
price may fluctuate as a result of a variety of factors, many of which are
beyond our control. These factors may include:
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quarterly
variations in our operating
results;
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operating
results that vary from the expectations of management, securities analysts
and investors;
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changes
in expectations as to our future financial
performance;
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changes
in foreign currency rates;
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announcements
of innovations, new products and technology, strategic developments,
significant contracts, acquisitions and other material events by us or our
competitors;
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the
operating and securities price performance of other companies that
investors believe are comparable to
us;
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future
sales of our equity or equity-related
securities;
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changes
in general conditions in our industry and in the economy, the financial
markets, and the domestic or international political
environment;
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legal
developments or disputes;
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changes
in accounting principles;
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departures
of key personnel; and
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regulatory
considerations.
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In
addition, in recent years, the stock market in general has experienced
significant price and volume fluctuations. This volatility has had a
significant effect on the market price of securities issued by many companies
for reasons often unrelated to their operating performance. These
broad market fluctuations may adversely affect our stock price, regardless of
our operating results.
Future
sales of shares by existing shareholders could affect our stock
price.
Shares of
common stock held by our shareholders, including our executive officers and
directors, may be sold in the public market at any time and from time to time
subject in certain cases to volume limitations under Rule 144 of the Securities
Act of 1933 (the Securities Act) and various vesting agreements. If
any of these shareholders sell substantial amounts of our common stock in the
public market, the market price of our common stock could decline. In
addition, shares subject to outstanding options and shares reserved for future
issuance under our stock option plan will continue to become eligible for sale
in the public market to the extent permitted by the provisions of the various
vesting agreements and the securities rules and regulations applicable to these
shares.
Our
shareholders’ interests may be diluted in various ways, which may reduce their
returns.
Our board
of directors is authorized, without shareholder approval, to authorize us to
issue additional shares of our common stock or to raise capital through the
issuance of preferred stock, debt securities, and other rights, on terms and for
consideration as our board of directors in its sole discretion may determine.
Any such issuance could result in dilution of the equity of our
shareholders. If our revenues are lower than anticipated or our
expenses are higher than anticipated, we will require additional capital to
service our indebtedness and finance our operations. We cannot assure you
that any additional sources of financing or new capital will be available to us,
available on acceptable terms, or permitted by the terms of our current
debt.
Our
rights plan and our ability to issue preferred stock could harm the rights of
our common shareholders.
Each
share of our outstanding common stock is associated with one right to acquire
one one-hundredth (1/100) of a share of our Series R Participating
Cumulative Preferred Stock, without par value, at a purchase price of $160.00
per share.
The
rights only become exercisable in certain limited circumstances on the
distribution date, which is the earlier of: (1) the close of
business on the tenth business day after a public announcement that a person has
acquired beneficial ownership of 15% or more of our outstanding shares of common
stock; and (2) a date that our Board of Directors designates following the
commencement of, or first public disclosure of an intent to commence, a tender
or exchange offer for outstanding shares of common stock that could result in
the offeror becoming the beneficial owner of 15% or more of our outstanding
shares of common stock. Prior to the earlier of the December 11,
2012 expiration date of the rights and a person becoming the beneficial owner of
15% or more of our outstanding shares of common stock, the rights are redeemable
by us at a price of $0.01 per right. If the rights are not redeemed,
each right will then entitle the holder to purchase for the purchase price,
common stock having the value of twice the then-current purchase
price. After a person becomes the beneficial owner of 15% or more of
our outstanding shares of common stock, but before a person becomes the
beneficial owner of more than 50% of these shares, our Board of Directors may
elect to exchange each preferred share purchase right, other than those that
have become null and void and nontransferable as described above, for shares of
our common stock, without payment of the purchase price. The exchange
rate in this situation would be one-half of the number of shares of common stock
that would otherwise be issuable at that time upon the exercise of one preferred
share purchase right.
Some
provisions in the rights plan may have the effect of discouraging a third party
from making an acquisition proposal for us and may thereby inhibit a change in
control. For example, such provisions may deter tender offers for
shares of our common stock, which offers may be attractive to shareholders, or
deter purchases of large blocks of our common stock, thereby limiting the
opportunity for shareholders to receive a premium for their shares of common
stock over the then-prevailing market prices.
Some
anti-takeover provisions contained in our charter and bylaws and under
Washington laws could hinder a takeover attempt.
Our Board
of Directors has the authority to issue up to 10 million shares of
preferred stock (1 million of which have been designated Series R
Participating Cumulative Preferred Stock under our shareholder rights plan and
the remainder of which have not yet been undesignated) and to determine the
powers, preferences and rights and the qualifications, limitations or
restrictions granted to or imposed upon any wholly unissued shares of
undesignated preferred stock and to fix the number of shares constituting any
series and the designation of such series, without the consent of our
shareholders. The preferred stock could be issued with voting,
liquidation, dividend, and other rights superior to those of the holders of our
common stock. The issuance of the Series R Participating
Cumulative Preferred Stock with respect to our shareholder rights plan or any
preferred stock subsequently issued by our Board of Directors, under some
circumstances, could have the effect of delaying, deferring, or preventing a
change in control.
Further,
certain provisions of our charter documents, including provisions relating to
limitations of liability and indemnification of our directors and officers,
dividing our Board of Directors into three classes of directors serving
three-year terms, majority voting for directors, and limiting the ability of
shareholders to raise matters at a meeting of shareholders without giving
advance notice, may have the effect of delaying or preventing changes in our
control or management, which could have an adverse effect on the market price of
our common stock.
Chapter 23B.19
of the Washington Business Corporation Act, with limited exceptions, prohibits a
"target corporation" from engaging in specified "significant business
transactions" for a period of five years after the share acquisition by an
acquiring person, unless (i) the prohibited transaction or the acquiring
person’s purchase of shares was approved by a majority of the members of the
target corporation’s board of directors prior to the acquiring person’s share
acquisition or (ii) the prohibited transaction was both approved by the majority
of the members of the target corporation’s board and authorized at a shareholder
meeting by at least two-thirds of the outstanding voting shares (excluding the
acquiring person’s shares) at or subsequent to the acquiring person’s share
acquisition. An acquiring person is defined as a person or group of
persons that beneficially own 10% or more of the voting securities of the target
corporation. Such prohibited transactions include, among other
things:
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certain
mergers, or consolidations with, disposition of assets to, or issuances of
stock to or redemption of stock from, the acquiring
person;
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termination
of 5% or more of the employees of the target corporation as a result of
the acquiring person's acquisition of 10% or more of the
shares;
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allowing
the acquiring person to receive any disproportionate benefit as a
shareholder; and
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liquidating
or dissolving the target
corporation.
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After the
five-year period, certain "significant business transactions" are permitted, as
long they comply with certain "fair price" provisions of the statute or are
approved by a majority of the outstanding shares other than those of which the
acquiring person has beneficial ownership. A corporation may not "opt
out" of this statute.
WHERE YOU CAN FIND MORE INFORMATION
We file
annual, quarterly, and special reports, as well as registration and proxy
statements and other information, with the SEC. These documents may
be read and copied at the Public Reference Room at 100 F. Street,
N.E., Washington, D.C. 20549. You can get further information about
the SEC's Public Reference Room by calling 1-800-SEC-0330. The SEC
also maintains a website at www.sec.gov that contains
reports, registration statements and other information regarding registrants
like us that file electronically with the SEC.
INFORMATION INCORPORATED BY
REFERENCE
The SEC
allows us to "incorporate by reference" into this prospectus the information we
file with the SEC. This means that we can disclose important
information to you by referring you to those documents where the information
resides. The information we incorporate by reference is considered a
part of this prospectus, and later information we file with the SEC will
automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings we make with the
SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 (the Exchange Act) until this offering is completed:
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Our
Annual Report on Form 10-K for the year ended December 31,
2008;
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Our
Current Reports on Form 8-K filed on January 26, 2009 and February
18, 2009;
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Our
Definitive Proxy Statement on Schedule 14A, filed on March 13,
2009 in connection with our 2009 Annual Meeting of
Shareholders;
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The
description of our common stock as set forth in our registration statement
on Form 8-A, which was filed on September 18,
1993;
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The
description of the preferred share purchase rights in our registration
statement on Form 8-A, filed on December 16, 2002, under
Section 12(b) of the Exchange Act, File No. 00-22418, including
any amendments or reports filed for the purpose of updating such
description.
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We are
not incorporating by reference any information furnished under Items 2.02 or
7.01 (or corresponding information furnished under Item 9.01 or included as an
exhibit) in any past or future current report on Form 8-K that we file with the
SEC, unless otherwise specified in such report. In accordance with Rule 402 of
Regulation S-T, the XBRL related information in Exhibit 100 to our Annual Report
on Form 10-K and our Quarterly Reports on Form 10-Q will not be deemed to be
incorporated by reference into any registration statement or other document
filed under the Securities Act, except as will be expressly set forth by
specific reference in such filing.
You may
obtain any of the documents incorporated by reference through the SEC or the
SEC's website as described above. You may also obtain copies of these
documents, other than exhibits, free of charge by contacting our investor
relations department at our principal offices, which are located at 2111 N.
Molter Road, Liberty Lake , Washington, 99019, and our telephone number is
(509) 924-9900.
ITRON, INC.
We
provide a comprehensive portfolio of products and services to utilities for the
energy and water markets throughout the world. Our strong position in meter data
collection and software solutions started with our introduction of handheld
computer-based systems in 1977. Through product innovations and several other
company acquisitions, we have become one of the world’s leading providers of
metering, data collection and software solutions, serving our customers for over
100 years.
USE OF PROCEEDS
We will
set forth in the applicable prospectus supplement our intended use for the net
proceeds received by us from our sale of securities under this
prospectus. We will not receive the net proceeds of any sales by
selling securityholders.
DESCRIPTION OF SECURITIES
We may
offer shares of common stock, preferred stock, debt securities and convertible
debt securities. We will set forth in the applicable prospectus
supplement a description of the common stock, preferred stock, debt securities
or convertible debt securities that may be offered under this
prospectus. The terms of the offering of securities, the initial
offering price, and the net proceeds to us will be contained in the prospectus
supplement and other offering material, relating to such offering.
SELLING SECURITYHOLDERS
Information
about selling securityholders, where applicable, will be set forth in a
prospectus supplement, in a post-effective amendment, or in filings we make with
the SEC under the Exchange Act, which are incorporated by
reference.
PLAN
OF DISTRIBUTION
We may sell
the securities through underwriters or dealers, through agents, or directly to
one or more purchasers, or through a combination of these methods. The
applicable prospectus supplement will describe the terms of the offering of the
securities, including:
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the
name or names of any underwriters, if any, and if required, any dealers or
agents;
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the
purchase price of the securities and the proceeds we will receive from the
sale;
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any
underwriting discounts and other items constituting underwriters’
compensation;
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any
initial public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers;
and
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any
securities exchange or market on which the securities may be
listed.
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Only
underwriters named in the prospectus supplement are underwriters of the
securities offered by the prospectus supplement.
If we use
underwriters in the sale, they will acquire the securities for their own account
and may resell them from time to time in one or more transactions at a fixed
public offering price or at varying prices. We may offer the securities to the
public through underwriting syndicates represented by managing underwriters or
by underwriters without a syndicate. Subject to specific limited conditions, the
underwriters will be obligated to purchase all the securities of the series
offered by the prospectus supplement. Any public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may change from
time to time.
We may sell
securities directly or through agents we designate from time to time. We will
name any agent involved in the offering and sale of securities and we will
describe any commissions we will pay the agent in the prospectus supplement.
Unless the prospectus supplement states otherwise, our agent will act on a
best-efforts basis for the period of its appointment.
We may
authorize agents or underwriters to solicit offers by institutional investors to
purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. We will describe the
conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
In connection
with the sale of the securities, underwriters, dealers, or agents may receive
compensation from us or from purchasers of the securities for whom they act as
agents in the form of discounts, concessions, or commissions. Underwriters may
sell the securities to or through dealers, and those dealers may receive
compensation in the form of discounts, concessions, or commissions from the
underwriters or commissions from the purchasers for whom they may act as agents.
Underwriters, dealers, and agents that participate in the distribution of the
securities, and any institutional investors or others that purchase securities
directly and then resell the securities, may be deemed to be underwriters, and
any discounts or commissions received by them from us and any profit on the
resale of the securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act.
We may
provide agents and underwriters with indemnification against particular civil
liabilities, including liabilities under the Securities Act, or contribution
with respect to payments that the agents or underwriters may make with respect
to such liabilities. Agents and underwriters may engage in transactions with, or
perform services for, us in the ordinary course of business.
In addition,
we may enter into derivative transactions with third parties (including the
writing of options), or sell securities not covered by this prospectus to third
parties in privately negotiated transactions. In connection with such a
transaction the third parties may, pursuant to this prospectus and the
applicable prospectus supplement, sell securities covered by this prospectus and
the applicable prospectus supplement. If so, the third parties may use
securities borrowed from us or others to settle such sales and may use
securities received from us to close out any related short positions. We may
also loan or pledge securities covered by this prospectus and the applicable
prospectus supplement to third parties, who may sell the loaned securities or,
in an event of default in the case of a pledge, sell the pledged securities
pursuant to this prospectus and the applicable prospectus
supplement.
All
securities we offer, other than common stock, will be new issues of securities
with no established trading market. Any underwriters may make a market in these
securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot guarantee the liquidity of the
trading markets for any securities.
Underwriters
may engage in stabilizing and syndicate covering transactions in accordance with
Rule 104 of Regulation M under the Exchange Act. Rule 104 of Regulation M
permits stabilizing bids to purchase the securities being offered as long as the
stabilizing bids do not exceed a specified maximum. Underwriters may over-allot
the offered securities in connection with the offering, thus creating a short
position in their account. Syndicate covering transactions involve purchases of
the offered securities by underwriters in the open market after the distribution
has been completed in order to cover syndicate short positions. Stabilizing and
syndicate covering transactions may cause the price of the offered securities to
be higher than it would otherwise be in the absence of these transactions. These
transactions, if commenced, may be discontinued at any time.
LEGAL MATTERS
Perkins
Coie LLP, Seattle, Washington, will provide Itron with an opinion as to the
legality of the securities we are offering. Counsel representing any
underwriters will be named in the applicable prospectus supplement.
The
consolidated financial statements of Itron, Inc. appearing in Itron, Inc.’s
Annual Report (Form 10-K) for the year ended December 31, 2008 (including
schedule appearing therein) have been audited by Ernst & Young LLP,
independent registered public accounting firm, as set forth in their report
thereon included therein, and incorporated herein by reference. Such financial
statements are, and audited financial statements to be included in subsequently
filed documents will be, incorporated herein in reliance upon the report of
Ernst & Young LLP pertaining to such financial statements (to the extent
covered by consents filed with the Securities and Exchange Commission) given on
the authority of such firm as experts in accounting and auditing.
The
consolidated financial statements of Itron, Inc. for the year ended December 31,
2006, incorporated in this prospectus by reference from the Annual Report on
Form 10-K of Itron, Inc. for the year ended December 31, 2008, have been audited
by Deloitte & Touche LLP, an independent registered public accounting firm,
as stated in their report, which is incorporated herein by reference. Such
consolidated financial statements have been so incorporated by reference in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
|
|
Itron,
Inc.
Common
Stock
Preferred
Stock
Debt
Securities
Convertible
Debt Securities
PROSPECTUS
,
2009
|
|
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
ITEM 14.
|
OTHER
EXPENSES OF ISSUANCE AND
DISTRIBUTION
|
The
following table sets forth the estimated costs and expenses, other than
underwriting discounts, payable by the registrant in connection with the
offering of the securities being registered.
|
SEC
registration
fee
|
$ | * | ||
|
NASD
filing
fee
|
** | |||
|
Nasdaq
Market Exchange listing
fee
|
** | |||
|
Transfer
Agent and registrar
fee
|
** | |||
|
Legal
fees and
expenses
|
** | |||
|
Accounting
expenses
|
** | |||
|
Total
|
$ | ** |
| * | In accordance with Rule 456(b), we are deferring payment of the registration fee for the securities offerred by this prospecturs. |
| ** | To be provided by amendment or as an exhibit to a filing with the SEC under Section 13(a), 13(c) or 15(d) of the Securities Exchange Act. |
|
ITEM 15.
|
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
|
Under the
Washington Business Corporation Act, a corporation may indemnify directors
against reasonable expenses for liability incurred in the defense of any
proceeding to which such individuals were a party because of their position with
the corporation. The director must have acted in good faith and
reasonably believed that the conduct in the individual's official capacity was
in the best interests of the corporation and in all other cases that the conduct
at least was not opposed to the corporation's best
interests. Indemnity is available for criminal proceedings if the
individual had no reasonable cause to believe the conduct was
unlawful. The Washington Business Corporation Act prohibits
indemnification, however, in connection with any proceeding by or in the right
of the corporation in which the individual is adjudged liable to the corporation
or in connection with any other proceeding in which the individual was charged
with and found liable for receiving an improper personal
benefit. Washington law also provides for discretionary
indemnification of officers. Under no circumstances, however, may any
director or officer be indemnified for:
|
·
|
acts
or omissions finally adjudged to be intentional misconduct or a knowing
violation of the law;
|
|
·
|
conduct
of a director or officer finally adjudged to be an unlawful distribution;
or
|
|
·
|
any
transaction with respect to which it was finally adjudged that the
director or officer personally received a benefit in money, property, or
services to which the director or officer was not legally
entitled.
|
Itron's
amended and restated bylaws provide this indemnification to directors and
officers to the full extent of the law. This right to indemnification
includes the right to advancement of expenses upon an undertaking by the
director or officer to repay the expenses if it is later determined that such
indemnitee was not entitled to indemnification. Under Itron's amended
and restated bylaws, this right to indemnification is a contract
right. Itron's amended and restated bylaws provide that it may
maintain insurance to protect any director or officer against any loss,
liability or expense whether or not Itron would have the power to indemnify such
person against such loss, liability or expense under the Washington Business
Corporation Act.
Section
10 of Itron’s amended and restated bylaws provide this indemnification to
directors and officers to the full extent of the law. This right to
indemnification includes the right to advancement of expenses upon an
undertaking by the director or officer to repay the expenses if it is later
determined that such indemnitee was not entitled to
indemnification.
Itron's
amended and restated bylaws also authorize Itron to enter into contracts with
any director or officer in furtherance of the provisions of the restated bylaws
regarding indemnification and to create a trust fund, grant a security interest
or use other means to ensure the payment of amounts necessary to effect this
indemnification.
Unless
limited by the corporation's articles of incorporation, Washington law requires
indemnification if the director or officer is wholly successful on the merits of
the action or otherwise. Any indemnification of a director in a
derivative action must be reported to the shareholders in writing with or before
notice of the next shareholders’ meeting. Article 9 of Itron's
amended and restated articles of incorporation provides that a director will not
be liable to Itron or its shareholders for monetary damages for conduct as a
director to the full extent of Washington law.
|
ITEM 16.
|
EXHIBITS
|
|
Exhibit
Number
|
Description
|
|
|
1.1*
|
Form
of Underwriting Agreement
|
|
|
3.1
|
Amended
and Restated Articles of Incorporation of Itron, Inc. (filed as
Exhibit 3.1 to Itron, Inc.'s Annual Report on Form 10-K, filed on
March 27, 2003, File No. 0-22418)
|
|
|
3.2
|
Amended
and Restated Bylaws of Itron, Inc. (filed as Exhibit 3.2 to Itron,
Inc.'s Annual Report on Form 10-K, filed on February 26, 2008, File
No. 0-22418)
|
|
|
4.1
|
Rights
Agreement between Itron, Inc. and Mellon Investor Services LLC, as Rights
Agent, dated as of December 11, 2002 (filed as Exhibit 4.1 to
the Itron, Inc. Registration of Securities on Form 8-A, filed on
December 16, 2002, File No. 0-22418)
|
|
|
4.2
|
Form
of Debt Indenture (filed as Exhibit 4.2 to Registration Statement on Form
S-3, No. 333-123346)
|
|
|
4.3
|
Form
of Convertible Debt Indenture (filed as Exhibit 4.3 to Registration
Statement on Form S-3, No. 333-123346)
|
|
|
4.4
|
Form
of Debt Security (filed as Exhibit 4.2 to Registration Statement on Form
S-3, No. 333-123346)
|
|
|
4.5
|
Form
of Convertible Debt Security (filed as Exhibit 4.3 to Registration
Statement on Form S-3, No. 333-123346)
|
|
|
5.1
|
Opinion
of Perkins Coie LLP
|
|
|
12.1*
|
Computation
of Ratio of Earnings to Fixed Charges
|
|
|
23.1
|
Consent
of Independent Registered Public Accounting Firm - Ernst & Young
LLP
|
|
|
23.2
|
Consent
of Independent Registered Public Accounting Firm - Deloitte &
Touche LLP
|
|
|
23.3
|
Consent
of Perkins Coie LLP (included in its opinion filed as Exhibit 5.1
hereto)
|
|
|
24.1
|
Power
of Attorney (included on signature page)
|
|
|
25.1**
|
Form
T-1 Statement of Eligibility of Trustee under Debt
Indenture
|
|
|
25.2**
|
Form
T-1 Statement of Eligibility of Trustee under Convertible Debt
Indenture
|
|
*
|
To
be filed by amendment or as an exhibit to a report on Form 8-K under
the Exchange Act, subsequent to effectiveness, pursuant to
Regulation S-K, Item 601(b)(1) under the Exchange
Act.
|
|
**
|
To
be filed in accordance with the requirements of Section 305(b)(2) of the
Trust Indenture Act of 1939 and Rule 5b-3
thereunder.
|
|
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 the Registration Statement;
(i)
To include any prospectus required by Section 10(a)(3) of the Securities
Act;
(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 and of the estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change in the maximum
aggregate offering price, set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration
Statement; provided, however, that paragraphs (i) and
(ii) 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 with or furnished to the SEC by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference
into the Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered that remain unsold at the termination of the
offering.
B. That,
for the purpose of determining liability under the Securities Act to any
purchaser:
(1) 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
(2) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a Registration Statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be part of and
included in the Registration Statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of
the issuer and any person that is at that date an underwriter, such date shall
be deemed to be a new effective date of the Registration Statement relating to
the securities in the Registration Statement to which that prospectus relates,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no
statement made in a Registration Statement or prospectus that is part of the
Registration Statement or made in a document incorporated or deemed incorporated
by reference into the Registration Statement or prospectus that is part of the
Registration Statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the Registration Statement or prospectus that was part of the Registration
Statement or made in any such document immediately prior to such effective
date.
C. That,
for the purpose of determining liability of the registrant under the Securities
Act to any purchaser in the initial distribution of the securities, the
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:
(1) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(2) 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;
(3) 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
(4) Any
other communication that is an offer under the offering made by the undersigned
registrant to the purchaser.
D. 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) incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
E. That,
insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that, in the opinion of the SEC, such indemnification is against public
policy as expressed in the Securities Act and is therefore
unenforceable. If 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.
F. That
the undersigned registrant will file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the SEC under Section 305(b)(2) of the Trust
Indenture Act.
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 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 Liberty Lake, State of Washington, on April 3,
2009.
|
ITRON,
INC.
|
||
|
By:
|
||
|
Steven
M. Helmbrecht
Sr. Vice President and Chief Financial
Officer
|
||
Each
person whose individual signature appears below hereby authorizes Malcolm
Unsworth and Steven M. Helmbrecht, or either of them, as attorneys-in-fact
with full power of substitution, to execute in the name and on the behalf of
each person, individually and in each capacity stated below, and to file, any
and all amendments to this Registration Statement, including any and all
post-effective amendments.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated below on
the 3rd day of April, 2009.
|
Signature
|
Title
|
|
|
Malcolm
Unsworth
|
President
and Chief Executive Officer, Director
(Principal Executive
Officer)
|
|
|
Steven
M. Helmbrecht
|
Sr.
Vice President and Chief Financial Officer
(Principal Financial and
Accounting Officer)
|
|
|
LeRoy
D. Nosbaum
|
Executive
Chairman of the Board, Director
|
|
|
Michael
B. Bracy
|
Director
|
|
|
Kirby
A. Dyess
|
Director
|
|
|
Jon
E. Eliassen
|
Director
|
|
|
Charles
H. Gaylord, Jr.
|
Director
|
|
|
Thomas
S. Glanville
|
Director
|
|
|
Sharon
L. Nelson
|
Director
|
|
|
Gary
E. Pruitt
|
Director
|
|
|
Graham
M. Wilson
|
Director
|
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
|
1.1*
|
Form
of Underwriting Agreement
|
|
|
3.1
|
Amended
and Restated Articles of Incorporation of Itron, Inc. (filed as
Exhibit 3.1 to Itron, Inc.'s Annual Report on Form 10-K filed on
March 27, 2003, (File No. 0-22418)
|
|
|
3.2
|
Amended
and Restated Bylaws of Itron, Inc. (filed as Exhibit 3.2 to Itron,
Inc.'s Annual Report on Form 10-K filed on February 26, 2008, (File
No. 0-22418)
|
|
|
4.1
|
Rights
Agreement between Itron, Inc. and Mellon Investor Services LLC, as Rights
Agent, dated as of December 11, 2002 (filed as Exhibit 4.1 to
the Itron, Inc. Registration of Securities on Form 8-A, filed on
December 16, 2002, File No. 0-22418)
|
|
|
4.2
|
Form
of Debt Indenture (filed as Exhibit 4.2 to Registration Statement on Form
S-3, No 333-123346)
|
|
|
4.3
|
Form
of Convertible Debt Indenture (filed as Exhibit 4.3 to Registration
Statement on Form S-3, No 333-123346)
|
|
|
4.4
|
Form
of Debt Security (filed as Exhibit 4.2 to Registration Statement on Form
S-3, No 333-123346)
|
|
|
4.5
|
Form
of Convertible Debt Security (filed as Exhibit 4.3 to Registration
Statement on Form S-3, No 333-123346)
|
|
|
5.1
|
||
|
12.1*
|
Computation
of Ratio of Earnings to Fixed Charges
|
|
|
23.1
|
||
|
23.2
|
||
|
23.3
|
Consent
of Perkins Coie LLP (included in its opinion filed as Exhibit 5.1
hereto)
|
|
|
24.1
|
Power
of Attorney (included on signature page)
|
|
|
25.1**
|
Form
T-1 Statement of Eligibility of Trustee under Debt
Indenture
|
|
|
25.2**
|
Form
T-1 Statement of Eligibility of Trustee under Convertible Debt
Indenture
|
|
*
|
To
be filed by amendment or as an exhibit to a report on Form 8-K under
the Exchange Act, subsequent to effectiveness, pursuant to
Regulation S-K, Item 601(b)(1) under the Exchange
Act.
|
| ** |
To
be filed in accordance with the requirements of Section 305(b)(2) of the
Trust Indenture Act of 1939 and Rule 5b-3
thereunder.
|
II
- 6