As filed with the Securities and Exchange Commission on November 19, 2008
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SLM CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware (State or other jurisdiction of |
52-2013874 (I.R.S. employer |
12061 Bluemont Way
Reston, VA 20190
(703) 810-3000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Mark L. Heleen, Esq.
Senior Vice President and Deputy General Counsel
SLM Corporation
12061 Bluemont Way
Reston, VA 20190
(703) 810-3000
(Address, including zip code, and telephone number, including area code, of agent for service)
Copies To:
Andrea L. Nicolas, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
(212) 735-3000
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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is 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. ¨
| Large accelerated filer x |
Accelerated filer ¨ | |
| Non-accelerated filer ¨ |
Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to be Registered(1)(2) |
Amount to be Registered |
Proposed Maximum Offering Price Per Unit |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
||||||||
| Debt Securities (3), Common Stock, $0.20 par value per share (4), Preferred Stock, $0.20 par value per share and Warrants |
(5 | ) | (5 | ) | (5 | ) | (5 | ) | ||||
| (1) | Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. |
| (2) | Additional Securities may be added by automatically effective post-effective amendments pursuant to Rule 413. |
| (3) | The Debt Securities to be offered hereunder will consist of one or more series of senior debt securities or subordinated debt securities or any combination thereof, as more fully described herein. |
| (4) | Common Stock may be issued upon conversion, exercise or exchange of any Debt Securities, Preferred Stock or Warrants. |
| (5) | An indeterminate aggregate initial offering price or number of securities of each identified class is being registered as may from time to time be issued at indeterminate prices. No separate consideration will be received for Debt Securities, Common Stock, Preferred Stock or Warrants that are issued upon the conversion of Debt Securities, Preferred Stock or Warrants. In accordance with Rules 456(b) and Rule 457(r), the Registrant is deferring payment of all of the registration fee. |
Prospectus
SLM CORPORATION
Debt Securities
Common Stock
Preferred Stock
Warrants
| • | This prospectus provides you with a general description of the securities we may offer. We may offer and sell, from time to time, in one or more offerings, any debt or equity securities, or any combination thereof, that we describe in this prospectus. We will provide specific terms of these securities in supplements to this prospectus. You should read this prospectus and the applicable supplement carefully before you invest. |
| • | We may issue common stock upon conversion, exercise or exchange of any debt securities, preferred stock or warrants. Our common stock is listed on the New York Stock Exchange under the symbol “SLM.” |
Obligations of SLM Corporation and its subsidiaries are not guaranteed by the full faith and credit of the United States of America. Neither SLM Corporation nor any of its subsidiaries is a government-sponsored enterprise or an instrumentality of the United States of America.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This prospectus is dated November , 2008
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This prospectus is part of a registration statement we filed with the Securities and Exchange Commission, or the SEC, using a “shelf” registration process. Under this shelf process, we may sell common stock, debt securities, preferred stock and warrants in one or more offerings. We may sell these securities either separately or in units. We may also issue common stock upon conversion, exchange or exercise of any of the securities mentioned above. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement together with the additional information described under the heading “Where You Can Find More Information.”
The registration statement that contains this prospectus, including the exhibits to the registration statement, contains additional information about us and the securities we may offer under this prospectus. You can read that registration statement at the SEC’s web site or at the SEC’s offices mentioned under the heading “Where You Can Find More Information.”
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov. The SEC’s website contains reports, proxy and information statements and other information regarding issuers, such as us, that file electronically with the SEC. You may also read and copy any document we file with the SEC at the SEC’s Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may also obtain copies of these documents at prescribed rates by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of its Public Reference Room. We maintain a website at http://www.salliemae.com. We have not incorporated by reference into this prospectus the information in, or that can be accessed through, our website, and you should not consider it to be a part of this prospectus.
We have filed a registration statement and related exhibits with the SEC under the Securities Act of 1933. This registration statement contains additional information about us and our securities. You can inspect the registration statement and exhibits without charge at the SEC’s Public Reference Room, and you may obtain copies from the SEC at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” into this prospectus the information we have filed with the SEC. The information we incorporate by reference into this prospectus is an important part of this prospectus. Any statement in a document we incorporate by reference into this prospectus will be considered to be modified or superseded to the extent a statement contained in this prospectus or any other subsequently filed document that is incorporated by reference into this prospectus modifies or supersedes that statement. The modified or superseded statement will not be considered to be a part of this prospectus, except as modified or superseded.
We incorporate by reference into this prospectus the information contained in the documents listed below, which is considered to be a part of this prospectus:
| • | our annual report on Form 10-K for the year ended December 31, 2007, filed with the SEC on February 29, 2008; |
| • | our quarterly reports on Form 10-Q for the quarters ended March 31, 2008, June 30, 2008 and September 30, 2008, filed with the SEC on May 9, 2008, August 7, 2008 and November 6, 2008, respectively; |
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| • | our current reports on Form 8-K filed with the SEC on January 3, 2008, January 9, 2008, January 11, 2008, January 23, 2008, January 25, 2008, January 29, 2008, February 6, 2008, February 15, 2008, March 4, 2008, April 2, 2008, April 17, 2008, April 23, 2008, June 16, 2008, June 19, 2008, July 23, 2008, July 25, 2008, August 6, 2008, August 20, 2008, August 28, 2008, September 19, 2008, September 30, 2008, October 6, 2008, October 15, 2008, October 22, 2008 and November 3, 2008; |
| • | the description of our common stock in our Form 8-A, which we filed with the SEC on August 7, 1997 and amended on July 27, 1999, and any amendments or reports filed for the purpose of updating this description; |
| • | the description of our currently outstanding Series A preferred stock in our Form 8-A, which we filed with the SEC on November 10, 1999; |
| • | the description of our currently outstanding Series B preferred stock in our Form 8-A, which we filed with the SEC on June 9, 2005; |
| • | the description of our currently outstanding 7.25% mandatory convertible preferred stock, Series C in our 424(b)5 prospectus, which we filed with the SEC on December 28, 2007; |
| • | the description of our currently outstanding $75,000,000 CPI- Linked Medium Term Notes due January 16, 2018 ($25 Par) in our Form 8-A, which we filed with the SEC on January 19, 2006; and |
| • | future filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 after the date of the initial registration statement and prior to effectiveness of the registration statement and after the date of this prospectus but prior to the termination of the offering of the securities covered by this prospectus. |
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
Corporate Secretary
SLM Corporation
12061 Bluemont Way
Reston, VA 20190
(703) 810-3000
You should rely only on the information incorporated by reference or provided in this prospectus and any prospectus supplement. We have not authorized anyone else to provide you with different information. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of these documents.
This prospectus and the information incorporated by reference in this prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These forward-looking statements are based on our management’s beliefs and assumptions and on information currently available to our management. Forward-looking statements include information concerning our possible or assumed future results of operations and statements preceded by, followed by or that include the words “believes,” “expects,” “anticipates,” “intends,” “plans,” “estimates” or similar expressions.
Forward-looking statements involve risks, uncertainties and assumptions. Actual results may differ materially from those expressed in these forward-looking statements. You should not put undue reliance on any forward-looking statements. We do not have any intention or obligation to update forward-looking statements after we distribute this prospectus.
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You should understand that the following important factors could cause our results to differ materially from those expressed in forward-looking statements: the occurrence of any event, change or other circumstances that could give rise to our ability to cost-effectively refinance the 2008 Asset-Backed Financing Facilities, including any potential foreclosure on the student loans under those facilities following their termination; increased financing costs; limited liquidity; any adverse outcomes in any significant litigation to which we are a party; our derivative counterparties terminating their positions with us if permitted by their contracts and our substantially incurring additional costs to replace any terminated positions; changes in the terms of student loans and the educational credit marketplace (including changes resulting from new laws and regulations and from the implementation of applicable laws and regulations) which, among other things, may reduce the volume, average term and yields on student loans under the FFELP, may result in loans being originated or refinanced under non-FFELP programs, or may affect the terms upon which banks and others agree to sell FFELP loans to us. We could also be affected by: changes in the demand for educational financing or in financing preferences of lenders, educational institutions, students and their families; incorrect estimates or assumptions by management in connection with the preparation of our consolidated financial statements; changes in the composition of our Managed loan portfolios; changes in the general interest rate environment and in the securitization markets for education loans, which may increase the costs or limit the availability of financings necessary to initiate, purchase or carry education loans; changes in projections of losses from loan defaults; changes in general economic conditions; changes in prepayment rates and credit spreads; and changes in the demand for debt management services and new laws or changes in existing laws that govern debt management services. All forward-looking statements contained in this prospectus are qualified by these cautionary statements and are made only as of the date this document is filed. We do not undertake any obligation to update or revise these forward-looking statements to conform the statement to actual results or changes in our expectations.
Unless otherwise indicated or unless the context requires otherwise, references in this prospectus to “we,” “us,” “our,” or similar references mean SLM Corporation and its consolidated subsidiaries.
SLM Corporation is a holding company that operates through a number of subsidiaries. We were formed in 1972 as the Student Loan Marketing Association, a federally chartered government-sponsored enterprise (“GSE”), with the goal of furthering access to higher education by acting as a secondary market for student loans. In 2004, we completed the transformation to a private company through the wind-down of the GSE. The GSE’s outstanding obligations were placed into a Master Defeasance Trust Agreement as of December 29, 2004, which was fully collateralized by direct, noncallable obligations of the United States.
Our primary business is to originate and hold student loans by providing funding, delivery and servicing support for education loans in the United States through our participation in the Federal Family Education Loan Program (“FFELP”) and through our own non-federally guaranteed Private Education loan programs. We primarily market our FFELP Stafford Loans and Private Education Loans through on-campus financial aid offices. We have also expanded into direct-to-consumer marketing, primarily for Private Education Loans, to reach those students and families that choose not to consult with the financial aid office.
We also earn fees for a number of services, including student loan and guarantee servicing, 529 college-savings plan administration, debt collection and providing processing capabilities and information technology to educational institutions. We also operate a consumer savings network through Upromise, Inc.
Our principal executive offices are located at 12061 Bluemont Way, Reston, VA 20190, and our telephone number is (703) 810-3000.
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Unless the applicable prospectus supplement states otherwise, we intend to use the net proceeds from the sale of the offered securities for general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following table sets forth our ratio of earnings to fixed charges and preferred stock dividends for the five years ended December 31, 2007 and the nine month periods ended September 30, 2008 and September 30, 2007.
| Years ended December 31, | Nine Months ended September 30, | |||||||||||||||
| 2007 | 2006 | 2005 | 2004 | 2003 | 2008 | 2007 | ||||||||||
| Ratio of Earnings to Fixed Charges and Preferred Stock |
0.92 | (2) | 1.37 | 1.67 | 2.74 | 3.21 | 0.97 | (2) | 1.23 | |||||||
| Ratio of Earnings to Fixed Charges (1) |
0.93 | (2) | 1.39 | 1.69 | 2.77 | 3.26 | 1.00 | 1.24 | ||||||||
| (1) | For purposes of computing these ratios, earnings represent income before income tax expense plus fixed charges. Fixed charges represent interest expensed and capitalized, plus one-third (the proportion deemed representative of the interest factor) of rents, net of income from subleases. |
| (2) | Due to pre-tax losses of $482 million and $6 million for the year ended December 31, 2007 and the nine months ended September 30, 2008, respectively, the ratio coverage was less than 1:1. |
This section describes the general terms and provisions of the securities to which this prospectus and any prospectus supplement relates.
Types of Securities
The types of securities that we may offer and sell from time to time by this prospectus are:
| • | debt securities, which we may issue in one or more series; |
| • | preferred stock, which we may issue in one or more series; |
| • | common stock; |
| • | warrants entitling the holders to purchase common stock, preferred stock or debt securities; |
| • | warrants or other rights relating to foreign currency exchange rates; or |
| • | warrants for the purchase or sale of debt securities of, or guaranteed by, the United States government or its agencies, units of a stock index or a stock basket or a commodity or a unit of a commodity index. |
We will determine when we sell securities, the amounts of securities we will sell and the prices and other terms on which we will sell them.
We will describe in a prospectus supplement, which we will deliver with this prospectus, the terms of particular securities that we may offer in the future. Each prospectus supplement will include the following information:
| • | the type and amount of securities that we propose to sell; |
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| • | the initial public offering price of the securities; |
| • | the names of the underwriters or agents, if any, through or to which we will sell the securities; |
| • | the compensation, if any, of those underwriters or agents; |
| • | information about securities exchanges or automated quotation systems on which the securities will be listed or traded; |
| • | any material United States federal income tax considerations that apply to the securities; and |
| • | any other material information about the offering and sale of the securities. |
DESCRIPTION OF DEBT SECURITIES
This section discusses debt securities we may offer under this prospectus.
We will issue debt securities under an indenture, dated as of October 1, 2000, between us and The Bank of New York Mellon, as successor to J.P. Morgan Chase Bank, National Association, as trustee, as amended or supplemented from time to time. The Bank of New York Mellon is located in New York, New York and is qualified to act as trustee under the Trust Indenture Act of 1939. The indenture permits there to be more than one trustee under the indenture with respect to different series of debt securities. The indenture is governed by the Trust Indenture Act.
From January 1, 2008 to September 30, 2008, we issued $2,500,000,000 in aggregate principal amount of debt securities under the indenture.
The following is a summary of the indenture. It does not restate the indenture entirely. We urge you to read the indenture. The indenture and any applicable indenture supplement will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may inspect them at the office of the trustee, or as described under the heading “Where You Can Find More Information.” References below to an “indenture” are references to the indenture and the applicable indenture supplement under which we issue a particular series of debt securities.
Terms of the Debt Securities
Our debt securities will be unsecured obligations of SLM Corporation. We may issue them in one or more series. Authorizing resolutions, a certificate or a supplemental indenture will set forth the specific terms of each series of debt securities. We will provide a prospectus supplement with, for some offerings, a pricing supplement, for each series of debt securities that will describe:
| • | the title of the debt securities and their CUSIP and ISIN numbers, as applicable; |
| • | any limit upon the aggregate principal amount of the series of debt securities; |
| • | the date or dates on which principal and premium, if any, of the debt securities will be payable; |
| • | if the debt securities will bear interest: |
| • | the interest rate on the debt securities or the method by which the interest rate may be determined; |
| • | the date from which interest will accrue; |
| • | the record and interest payment dates for the debt securities; |
| • | any circumstances under which we may defer interest payments; and |
| • | the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months; |
| • | the place or places where: |
| • | we can make payments on the debt securities; |
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| • | the debt securities can be surrendered for registration of transfer or exchange; |
| • | notices and demands can be given to us relating to the debt securities and under the applicable indenture, and where notices to holders pursuant to the applicable indenture will be published; |
| • | any optional redemption provisions that would permit us or the holders of debt securities to elect to redeem the debt securities before their final maturity; |
| • | any conversion features; |
| • | any sinking fund provisions that would obligate us to redeem the debt securities; |
| • | whether any of the debt securities are to be issuable as registered securities, bearer securities or both, whether debt securities are to be issuable with or without coupons or both and, if issuable as bearer securities, the date as of which the bearer securities will be dated (if other than the date of original issuance of the first debt security of that series of like tenor and term to be issued and any restrictions applicable to the offering, sale or delivery of bearer securities and whether, and the terms upon which, bearer securities of a series may be exchanged for registered securities of the same series and vice versa); |
| • | whether all or part of the debt securities will be issued in whole or in part as temporary or permanent global securities and, if so, the depositary for those global securities and a description of any book-entry procedures relating to the global securities; |
| • | if we issue temporary global securities, any special provisions dealing with the payment of interest and any terms relating to the ability to exchange interests in a temporary global security for interests in a permanent global security or for definitive debt securities; |
| • | the denominations in which the debt securities will be issued, if other than $1,000 or an integral multiple of $1,000; |
| • | the portion of the principal amount of debt securities payable upon a declaration of acceleration of maturity, if other than the full principal amount; |
| • | the currency or currencies in which the debt securities will be denominated and payable and, if a composite currency, any related special provisions; |
| • | any circumstances under which the debt securities may be paid in a currency other than the currency in which the debt securities are denominated and any related provisions; |
| • | the manner in which principal, premium and interest on debt securities will be determined if they are determined with reference to an index based upon a currency or currencies other than that in which the debt securities are denominated or payable; |
| • | any events of default that will apply to the debt securities in addition to those contained in the applicable indenture; |
| • | whether the issue of debt securities may be “reopened” by offering additional securities with substantially the same terms; |
| • | any additions or changes to the covenants contained in the applicable indenture and the ability, if any, of the holders to waive our compliance with those additional or changed covenants; |
| • | whether the provisions described below under the heading “Defeasance” apply to the debt securities; |
| • | the identity of the security registrar and paying agent for the debt securities if other than the applicable trustee; |
| • | any risk factors; and |
| • | any other terms of the debt securities. |
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Covenants Contained in Indenture
The indenture does not restrict our ability to put liens on our interests in our subsidiaries, and it does not restrict our ability to sell or otherwise dispose of our interests in any of our subsidiaries.
We are required to deliver to the trustee an annual statement as to our fulfillment of all of our obligations under the indenture.
Consolidation, Merger or Sale
The indenture generally permits us to consolidate with or merge into another entity. It also permits us to sell, transfer or lease all or substantially all of our property and assets. These transactions are permitted if:
| • | the resulting or acquiring entity, if it is not us, is organized and existing under the laws of a domestic jurisdiction and assumes all of our obligations under the applicable indenture, including the payment of all amounts due on the debt securities and performance of obligations under the indenture; and |
| • | immediately after the transaction, and giving effect to the transaction, no event of default under the indenture exists; and |
| • | we deliver to the trustee an officers’ certificate and an opinion of counsel stating that the transactions comply with these conditions. |
If we consolidate with or merge into or are merged into any other entity or sell, transfer or lease all or substantially all of our property and assets according to the terms and conditions of the indenture, the resulting or acquiring entity will be substituted for us in the indenture with the same effect as if it had been an original party to the indenture. As a result, the successor entity may exercise our rights and powers under the indenture, in our name and, except in the case of a lease of all or substantially all of our properties, we will be released from all our liabilities and obligations under the indenture and under the debt securities.
Events of Default and Remedies
An event of default with respect to any series of debt securities is defined in the indenture as being:
| • | default for 30 days in payment of any installment of interest on any debt security of that series beyond any applicable grace period; |
| • | default in payment of the principal of or premium, if any, on any of the debt securities of that series when due; |
| • | default for 60 days after notice in the observance or performance of any other covenants in the indenture or applicable supplemental indenture relating to that series; and |
| • | our bankruptcy, insolvency or reorganization. |
Additional events of default for your series of debt securities may be defined in a supplemental indenture for your securities.
The indenture provides that the trustee may withhold notice to the holders of any series of debt securities of any default, except a default in payment of principal, premium, if any, or interest, if any, with respect to a series of debt securities, if the trustee considers it in the interest of the holders of that series of debt securities to do so.
The indenture provides that if any event of default (other than our bankruptcy, insolvency or reorganization) has occurred and is continuing with respect to any series of debt securities, the trustee or the holders of not less than 25% in principal amount of all debt securities of that series then outstanding, acting together as a single class, may declare the principal amount of and all accrued but unpaid interest on all the debt securities of that series to be due and payable immediately. If our bankruptcy, insolvency or reorganization causes an event of
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default, the principal amount of and all accrued but unpaid interest on all series of debt securities that are affected by the event of default will be immediately due and payable without any declaration or action by the trustee or the holders.
The holders of a majority in principal amount of the debt securities of a series then outstanding that are affected by an event of default, acting as a single class, by notice to the trustee, may waive any existing default, other than any event of default in payment of principal or interest or in respect of an indenture provision that may be amended only with the consent of the holder of each affected debt security. Holders of a majority in principal amount of debt securities of any series affected by an event of default that were entitled to declare the event of default may rescind the declaration and its consequences if the recission will not conflict with any judgment or decree for payment of money due that has been obtained by the trustee.
The holders of a majority of the outstanding principal amount of the debt securities of any series will have the right to direct the time, method and place of conducting any proceedings for any remedy available to the trustee with respect to that series, subject to limitations specified in the indenture.
Defeasance
Defeasance and Discharge. At the time that we establish a series of debt securities under the indenture, we can provide that the debt securities of that series are subject to the defeasance and discharge provisions of the indenture. If we so provide, we will be discharged from our obligations on the debt securities of that series if we irrevocably deposit with the trustee, in trust, sufficient money or, if the debt securities of that series are denominated and payable in U.S. dollars only, eligible instruments, to pay the principal, any interest, any premium and any other sums due on the debt securities of that series, such as sinking fund payments, on the dates the payments are due under the indenture and the terms of the debt securities.
When we use the term “eligible instruments” in this section, we mean monetary assets, money market instruments and securities that are payable in dollars only and are essentially risk free as to collection of principal and interest, including:
| • | direct obligations of the United States backed by the full faith and credit of the United States; or |
| • | any obligation of a person controlled or supervised by and acting as an agency or instrumentality of the United States if the timely payment of the obligation is unconditionally guaranteed as a full faith and credit obligation by the United States. |
In the event that we deposit money and/or eligible instruments in trust and discharge our obligations under a series of debt securities as described above, then:
| • | the indenture will no longer apply to the debt securities of that series; but certain obligations to compensate, reimburse and indemnify the trustee, to register the transfer and exchange of debt securities, to replace lost, stolen or mutilated debt securities, to maintain paying agencies and the trust funds and to pay additional amounts, if any, required as a result of U.S. withholding taxes imposed on payments to non-U.S. persons will continue to apply; and |
| • | holders of debt securities of that series can only look to the trust fund for payment of principal, any premium and any interest on the debt securities of that series. |
Defeasance of Covenants and Events of Default. At the time that we establish a series of debt securities under the indenture, we can provide that the debt securities of that series are subject to the covenant defeasance provisions of the indenture. If we so provide and we make the deposit, we will not have to comply with any covenant we designate when we establish the series of debt securities.
In the event of a covenant defeasance, our obligations under the indenture and the debt securities, other than with respect to the covenants specifically referred to above, will remain in effect.
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If we exercise our option not to comply with any covenant and the debt securities of the series become immediately due and payable because an event of default has occurred, other than as a result of an event of default related to a covenant that is subject to defeasance, the amount of money and/or eligible instruments on deposit with the applicable trustee will be sufficient to pay the principal, any interest, any premium and any other sums, due on the debt securities of that series, such as sinking fund payments, on the date the payments are due under the applicable indenture and the terms of the debt securities, but may not be sufficient to pay amounts due at the time of acceleration. We would remain liable, however, for the balance of the payments.
Registration and Transfer
Unless we indicate otherwise in the applicable prospectus supplement, we will issue debt securities only as registered securities without coupons. Debt securities that we issue as bearer securities will have interest coupons attached, unless we indicate otherwise in the applicable prospectus supplement.
With respect to registered securities, we will keep or cause to be kept a register in which we will provide for the registration of registered securities and the registration of transfers of registered securities. We will appoint a “security registrar,” and we may appoint any “co-security registrar,” to keep the security register.
Upon surrender for registration of transfer of any registered security of any series at our office or agency maintained for that purpose in a place of payment for that series, we will execute one or more new registered securities of that series in any authorized denominations, with the same aggregate principal amount and terms. At the option of the holder, a holder may exchange registered securities of any series for other registered securities of that series, or bearer securities (along with all necessary related coupons) of any series for registered securities of the same series. Registered securities will not be exchangeable for bearer securities in any event.
We will agree in the indenture that we will maintain in each place of payment for any series of debt securities an office or agency where:
| • | any debt securities of each series may be presented or surrendered for payment; |
| • | any registered securities of that series may be surrendered for registration of transfer; |
| • | debt securities of that series may be surrendered for exchange or conversion; and |
| • | notices and demands to or upon us in respect of the debt securities of that series and the indenture may be served. |
We will not charge holders for any registration of transfer or exchange of debt securities. We may require holders to pay for any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange, other than exchanges expressly provided in the indenture to be made at our own expense or without expense or without charge to the holders.
Global Securities
We may issue debt securities of a series, in whole or in part, in the form of one or more global securities, registered in the name of Cede & Co., the nominee of The Depository Trust Company, New York, New York, unless the prospectus supplement or pricing supplement describes another depositary or states that no global securities will be issued. Unless and until it is exchanged in whole or in part for the individual debt securities it represents, a global security may not be transferred except as a whole by:
| • | DTC to its nominee; |
| • | DTC’s nominee to the depositary or another nominee of the depositary; or |
| • | DTC or any nominee to a successor depositary or any nominee of that successor. |
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Upon the issuance of a global security, DTC will credit, on its book-entry registration and transfer system, the principal amount of the securities represented by the global security to accounts of institutions that have accounts with DTC. Institutions that have accounts with DTC are referred to as “participants.” The accounts to be credited will be designated by the agents, or by us if we sell the securities directly. Owners of beneficial interests in a global security that are not participants or persons that may hold through participants but desire to purchase, sell or otherwise transfer ownership of the securities by book-entry on the records of DTC may do so only through participants and persons that may hold through participants. Because DTC can only act on behalf of participants and persons that may hold through participants, the ability of an owner of a beneficial interest in a global security to pledge securities to persons or entities that do not participate in the book-entry and transfer system of DTC, or otherwise take actions in respect of the securities, may be limited. In addition, the laws of some states require that some purchasers of securities take physical delivery of such securities in definitive form. These limits and laws may impair a purchaser’s ability to transfer beneficial interests in a global security.
So long as DTC, or its nominee, is the registered owner of a global security, DTC or its nominee will be considered the sole owner or holder of the securities represented by the global security for all purposes under the indenture. Generally, owners of beneficial interest in a global security will not be entitled to have securities represented by the global security registered in their names, will not receive or be entitled to receive physical delivery of securities in definitive form and will not be considered the owners or holders of the securities under the indenture.
Principal and interest payments on securities registered in the name of DTC or its nominee will be made to DTC or its nominee as the registered owner of a global security. Neither we, the trustee, any paying agent nor the security registrar will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in a global security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We expect that DTC, upon receipt of any payment of principal or interest, will credit immediately participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of a global security as shown on the records of DTC. We also expect that payments by participants to owners of beneficial interests in a global security held through the participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers and registered in “street name,” and will be the responsibility of such participants. Owners of beneficial interests in a global security that hold through DTC under a book-entry format (as opposed to holding certificates directly) may experience some delay in the receipt of interest payments since DTC will forward payments to its participants, which in turn will forward them to persons that hold through participants.
If DTC is at any time unwilling or unable to continue as depositary and a successor depositary is not appointed by us or DTC within ninety days, we will issue securities in definitive registered form in exchange for a global security. In addition, either we or DTC may at any time, in our sole discretion, determine not to have the securities represented by a global security and, in that event, we will issue securities in definitive registered form in exchange for the global security. In either instance, an owner of a beneficial interest in a global security will be entitled to have securities equal in principal amount to the beneficial interest registered in its name and will be entitled to physical delivery of the securities in definitive form.
DTC has advised us that it is a limited-purpose trust company organized under the New York Banking Law; a member of the Federal Reserve System; a “clearing corporation” within the meaning of the New York Uniform Commercial Code; a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended; and a “banking organization” within the meaning of the New York Banking Law. DTC holds securities that its participants deposit with DTC. DTC also facilitates settlement of securities transactions among its participants, such as transfers and pledges in deposited securities, through electronic book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTC’s participants include securities brokers and dealers, banks, trust companies, clearing
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corporations and other organizations. DTC is owned by several DTC participants and by the New York Stock Exchange, the American Stock Exchange and the National Association of Securities Dealers, Inc. Access to DTC’s book-entry system is also available to others, including banks, brokers, dealers and trust companies, that clear through or maintain a custodian relationship with a participant, whether directly or indirectly.
Payment and Paying Agents
Unless we indicate otherwise in a prospectus supplement:
| • | we will maintain an office or agency in each place of payment for any series of debt securities where debt securities of that series may be presented or surrendered for payment; we may also from time to time designate one or more other offices or agencies where debt securities of one or more series may be presented or surrendered for payment and may appoint one or more paying agents for the payment of debt securities, in one or more other cities, and may from time to time rescind these designations and appointments; |
| • | at our option, we may pay any interest by check mailed to the address of the person entitled to payment as that address appears in the applicable security register kept by us or by wire transfer; and |
| • | we will pay any installment of interest on registered securities to the person in whose name the debt security is registered at the close of business on the regular record date for that payment. |
The holder of any coupon relating to a bearer security will be entitled to receive the interest payable on that coupon upon presentation and surrender of the coupon on or after the interest payment date of the coupon. We will not make payment with respect to any bearer security at any of our offices or agencies in the United States, by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States.
Modification and Amendment
Some of our rights and obligations and some of the rights of holders of the debt securities may be modified or amended with the written consent of the holders of at least a majority of the aggregate principal amount of the outstanding debt securities of each series of debt securities affected by the modification or amendment, with each series voting as a class. The following modifications and amendments, however, will not be effective against any holder without its consent:
| • | a reduction of the amount of debt securities whose holders must consent to an amendment or waiver; |
| • | a change in the rate of or in the time for payment of interest on any debt securities; |
| • | a change in the principal (and the premium, if any) of or a change in the fixed maturity of any debt securities; |
| • | a waiver of a default in the payment of principal (and the premium, if any) of or interest on any debt securities; |
| • | a change in the currency in which any payment on the debt securities is payable; or |
| • | any change in Section 6.04 of the Indenture (Waiver of Existing Defaults), Section 6.07 of the Indenture (Rights of Holders to Receive Payment), or a modification of any of the foregoing requirements. |
Concerning the Trustee
The trustee, The Bank of New York Mellon, provides and may continue to provide various services to us in the ordinary course of its business. The indenture contains limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in specified cases or to realize on property received in respect of any claim as security or otherwise. The indenture permits the trustee to engage in other transactions; but if it acquires any conflicting interest, it must eliminate the conflict or resign.
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The indenture provides that in case an event of default occurs and is not cured, the trustee will be required, in the exercise of its power, to use the degree of care of a prudent person in similar circumstances in the conduct of its own affairs. The trustee may refuse to perform any duty or exercise any right or power under the indenture, unless it receives indemnity satisfactory to it against any loss, liability or expense.
Governing Law
The laws of the State of New York will govern the indenture and the debt securities.
Our authorized capital stock is 1,125,000,000 shares of common stock, $.20 par value, and 20,000,000 shares of preferred stock, $.20 par value. As of September 30, 2008, 467,467,686 shares of our common stock and 8,449,770 shares of our preferred stock were outstanding.
Common Stock
Our common stock is described in our registration statement on Form 8-A, which we filed with the SEC on August 7, 1997, as amended by our Form 8-A/A, which we filed with the SEC on July 27, 1999. These documents are incorporated by reference into this prospectus.
We will distribute a prospectus supplement with regard to each issue of common stock. Each prospectus supplement will describe the specific terms of the common stock offered through that prospectus supplement and any general terms outlined in our Form 8-A, as amended, that will not apply to that common stock.
Preferred Stock
We may issue preferred stock in one or more series with any rights and preferences that may be authorized by our board of directors. Our currently outstanding Series A preferred stock is described in our registration statement on Form 8-A, which we filed with the SEC on November 10, 1999. Our currently outstanding Series B preferred stock is described in our registration statement on Form 8-A, which we filed with the SEC on June 9, 2005. Our currently outstanding mandatory convertible preferred stock, Series C is described in our 424(b)5 prospectus, which we filed with the SEC on December 28, 2007. Each of these registration statements are incorporated by reference into this prospectus.
We will distribute a prospectus supplement with regard to each particular series of preferred stock. Each prospectus supplement will describe, as to the series of preferred stock to which it relates:
| • | the title of the series of preferred stock; |
| • | any limit upon the number of shares of the series of preferred stock that may be issued; |
| • | the preference, if any, to which holders of the series of preferred stock will be entitled upon our liquidation; |
| • | the date or dates, if any, on which we will be required or permitted to redeem the preferred stock; |
| • | the terms, if any, on which we or holders of the preferred stock will have the option to cause the preferred stock to be redeemed or purchased; |
| • | the voting rights, if any, of the holders of the preferred stock; |
| • | the dividends, if any, that will be payable with regard to the series of preferred stock, which may be fixed dividends or participating dividends, and may be cumulative or non-cumulative; |
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| • | the right, if any, of holders of the preferred stock to convert it into another class of our stock or securities, including provisions intended to prevent dilution of those conversion rights; |
| • | any provisions by which we will be required or permitted to make payments to a sinking fund to be used to redeem preferred stock, or a purchase fund to be used to purchase preferred stock; and |
| • | any other material terms of the preferred stock. |
Any or all of these rights may be greater than the rights of the holders of common stock.
Our board of directors, without shareholder approval, may issue preferred stock with voting, conversion or other rights that could adversely affect the voting power and other rights of the holders of our common stock. The terms of the preferred stock that might be issued could conceivably prohibit us from:
| • | consummating a merger; |
| • | reorganizing; |
| • | selling substantially all of our assets; |
| • | liquidating; or |
| • | engaging in other extraordinary corporate transactions without shareholder approval. |
Preferred stock could therefore be issued with terms calculated to delay, defer or prevent a change in our control or to make it more difficult to remove our management. Our issuance of preferred stock may have the effect of decreasing the market price of the common stock.
We may issue:
| • | warrants for the purchase of debt securities, preferred stock, common stock or units of two or more of these types of securities; |
| • | currency warrants, which are warrants or other rights relating to foreign currency exchange rates; or |
| • | index warrants, which are warrants for the purchase or sale of debt securities of, or guaranteed by, the United States government or its agencies, units of a stock index or a stock basket or a commodity or a unit of a commodity index. |
Warrants may be issued independently or together with debt securities, preferred stock or common stock, and may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any registered holders of warrants or beneficial owners of warrants.
We will distribute a prospectus supplement with regard to each issue of warrants. Each prospectus supplement will describe:
| • | in the case of warrants to purchase debt securities, the designation, aggregate principal amount, currencies, denominations and terms of the series of debt securities purchasable upon exercise of the warrants, and the price at which you may purchase the debt securities upon exercise; |
| • | in the case of warrants to purchase preferred stock, the designation, number of shares, stated value and terms, such as liquidation, dividend, conversion and voting rights, of the series of preferred stock purchasable upon exercise of the warrants, and the price at which you may purchase shares of preferred stock of that series upon exercise; |
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| • | in the case of warrants to purchase common stock, the number of shares of common stock purchasable upon the exercise of the warrants and the price at which you may purchase shares of common stock upon exercise; |
| • | in the case of currency warrants, the designation, aggregate principal amount, whether the currency warrants are put or call currency warrants or both, the formula for determining any cash settlement value, exercise procedures and conditions, the date on which your right to exercise the currency warrants commences and the date on which your right expires, and any other terms of the currency warrants; |
| • | in the case of index warrants, the designation, aggregate principal amount, the procedures and conditions relating to the exercise of the index warrants, the date on which your right to exercise the index warrants commences and the date on which your right expires, the national securities exchange on which the index warrants will be listed, if any, and any other material terms of the index warrants; |
| • | in the case of warrants to purchase units of two or more securities, the type, number and terms of the units purchasable upon exercise of the warrants and the price at which you may purchase units upon exercise; |
| • | the period during which you may exercise the warrants; |
| • | any provision adjusting the securities that may be purchased on exercise of the warrants, and the exercise price of the warrants, to prevent dilution or otherwise; |
| • | the place or places where warrants can be presented for exercise or for registration of transfer or exchange; and |
| • | any other material terms of the warrants. |
Unless we provide otherwise in a prospectus supplement, warrants for the purchase of preferred stock and common stock will be offered and exercisable for U.S. dollars only, and will be issued in registered form only. The exercise price for warrants will be subject to adjustment as described in the prospectus supplement for those warrants.
Prior to the exercise of any warrants to purchase debt securities, preferred stock or common stock, holders of the warrants will not have any of the rights of holders of the securities purchasable upon exercise, including:
| • | in the case of warrants for the purchase of debt securities, the right to receive payments of principal of or any premium or interest on the debt securities purchasable upon exercise, or to enforce covenants in the applicable indenture; or |
| • | in the case of warrants for the purchase of preferred stock or common stock, the right to vote or to receive any payments of dividends on the preferred stock or common stock purchasable upon exercise. |
We may sell any of the securities being offered by this prospectus separately or together:
| • | through agents; |
| • | to or through underwriters who may act directly or through a syndicate represented by one or more managing underwriters; |
| • | through dealers; |
| • | through a block trade in which the broker or dealer engaged to handle the block trade will attempt to sell the securities as agent, but may position and resell a portion of the block as principal to facilitate the transaction; |
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| • | in exchange for our outstanding indebtedness; |
| • | directly to purchasers, through a specific bidding, auction or other process; or |
| • | through a combination of any of these methods of sale. |
If the securities offered under this prospectus are issued in exchange for our outstanding securities, the applicable prospectus supplement will describe the terms of the exchange, and the identity and the terms of sale of the securities offered under this prospectus by the selling security holders.
The distribution of securities may be effected from time to time in one or more transactions at a fixed price or prices that may be changed, at market prices prevailing at the time of sale or prices related to prevailing market prices or at negotiated prices.
Agents designated by us from time to time may solicit offers to purchase the securities. We will name any agent involved in the offer or sale of the securities and set forth any commissions payable by us to an agent in the prospectus supplement. Unless otherwise indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. Any agent may be deemed to be an “underwriter” of the securities as that term is defined in the Securities Act.
If we utilize an underwriter or underwriters in the sale of securities, we will execute an underwriting agreement with the underwriter or underwriters at the time we reach an agreement for sale. We will set forth in the prospectus supplement the names of the specific managing underwriter or underwriters, as well as any other underwriters, and the terms of the transactions, including compensation of the underwriters and dealers. This compensation may be in the form of discounts, concessions or commissions. Underwriters and others participating in any offering of securities may engage in transactions that stabilize, maintain or otherwise affect the price of securities. We will describe any of these activities in the prospectus supplement.
If a dealer is utilized in the sale of the securities, we or an underwriter will sell securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. The prospectus supplement will set forth the name of the dealer and the terms of the transactions.
We may directly solicit offers to purchase the securities, and we may sell directly to institutional investors or others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the securities. The prospectus supplement will describe the terms of any direct sales, including the terms of any bidding or auction process, if utilized.
Agreements we enter into with agents, underwriters and dealers may entitle them to indemnification by us against specified liabilities, including liabilities under the Securities Act, or to contribution by us to payments they may be required to make in respect of these liabilities. The prospectus supplement will describe the terms and conditions of indemnification or contribution. Some of the agents, underwriters or dealers, or their affiliates, may be our customers, or engage in transactions with or perform services for us and our subsidiaries in the ordinary course of business.
Certain of the agents, underwriters and dealers that we sell the securities offered under this prospectus to or through, and certain of their affiliates, engage in transactions with and perform services for us in the ordinary course of business. We may enter into hedging transactions in connection with any particular issue of the securities offered under this prospectus, including forwards, futures, options, interest rate or exchange rate swaps and repurchase or reverse repurchase transactions with, or arranged by, the applicable agent, underwriter or dealer, an affiliate of that agent, underwriter or dealer or an unrelated entity. We, the applicable agent, underwriter or dealer or other parties may receive compensation, trading gain or other benefits in connection with these transactions. We are not required to engage in any of these transactions. If we commence these
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transactions, we may discontinue them at any time. Counterparties to these hedging activities also may engage in market transactions involving the securities offered under this prospectus.
No securities may be sold under this prospectus without delivery (in paper format, in electronic format, in electronic format on the Internet, or by other means) of the applicable prospectus supplement describing the method and terms of the offering.
Mark L. Heleen, Esq., who is our Senior Vice President and Deputy General Counsel, or another of our lawyers, will issue an opinion about the legality of the securities offered by this prospectus. Mr. Heleen owns shares of our common stock and holds stock options and stock-based awards under our compensation and management incentive plans. Other of our lawyers may also own our common stock and hold similar stock options or awards. They may receive additional awards under these plans in the future.
Certain legal matters will be passed upon for any underwriters or agents by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York. Skadden, Arps, Slate, Meagher & Flom LLP represents us in other legal matters.
The financial statements 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 for the year ended December 31, 2007 have been so incorporated in reliance on the report(s) of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution |
The following table sets forth all expenses payable by us in connection with the offering of the securities being registered, other than discounts and commissions.
| Registration Fee |
$ | * | |
| Printing Expenses |
$ | ** | |
| Legal Fees and Expenses |
$ | ** | |
| Accounting Fees and Expenses |
$ | ** | |
| Blue Sky Fees and Expenses |
$ | ** | |
| Trustee, Transfer Agent and Registrar Fees and Expenses |
$ | ** | |
| Rating Agency Fees and Expenses |
$ | ** | |
| Miscellaneous |
$ | ** | |
| Total |
$ | ||
| * | Deferred in reliance upon Rules 456(b) and 457(r). |
| ** | These fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time. |
| Item 15. | Indemnification of Officers and Directors |
Article VIII of SLM Corporation’s By-Laws provides for indemnification of the officers and directors of SLM Corporation to the fullest extent permitted by applicable law. Section 145 of the Delaware General Corporation Law provides, in relevant part, that a corporation organized under the laws of Delaware shall have the power, and in certain cases the obligation, to indemnify any person who was or is a party or is threatened to be made a party to any suit or proceeding because such person is or was a director, officer, employee or agent of the corporation or is or was serving, at the request of the corporation, as a director, officer, employee or agent of another corporation, against all costs actually and reasonably incurred by him in connection with such suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal proceeding, he had no reason to believe his conduct was unlawful. Similar indemnity is permitted to be provided to such persons in connection with an action or suit by or in right of the corporation, provided such person acted in good faith and in a manner he believed to be in or not opposed to the best interests of the corporation, and provided further (unless a court of competent jurisdiction otherwise determines) that such person shall not have been adjudged liable to the corporation.
The directors and officers of SLM Corporation and its subsidiaries are covered by a policy of insurance under which they are insured, within limits and subject to certain limitations, against certain expenses in connection with the defense of actions, suits or proceedings, and certain liabilities that might be imposed as a result of such actions, suits or proceedings in which they are parties by reason of being or having been directors or officers.
The Registrant has also entered into indemnification agreements (the “Indemnification Agreements”) with its independent directors (individually, the “Indemnitee”). The Indemnification Agreements, among other things, provide for the maximum indemnity permitted for directors under Section 145 of Delaware General Corporation Law and the Company’s By-laws, as well as additional procedural protections. The Indemnification Agreements requires the Company to indemnify the relevant Indemnitee against liability that may arise by reason of his or her status or service as director of the Company if the Indemnitee acted in good faith, for a purpose which he or she reasonably believed to be in or not opposed to the best interests of the Company, and in the case of a criminal proceeding, in addition, had no reasonable cause to believe that his or her conduct was unlawful. The
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Indemnification Agreements requires the Company to advance any expenses incurred by the relevant Indemnitee as a result of any proceeding against him or her, so long as the Indemnitee provides an undertaking that the Indemnitee will repay the advances to the extent that it ultimately is determined that the Indemnitee is not entitled to be indemnified by the Company, the expenses have not been paid for under any insurance policy, the underlying claim giving rise to the expenses is not for violation of Section 16(b) of the Exchange Act of 1934 (“short swing profits”), and the claim was not initiated by the Indemnitee.
Item 16. Exhibits
The following exhibits are filed herewith or incorporated by reference:
| Exhibit |
Description of Document | |
| ***1.1 | Form of Underwriting Agreement (Debt Securities) | |
| **1.2 | SLM Corporation Medium Term Notes, Series A, Amended and Restated Distribution Agreement, dated as of June 11, 2008, among the Company and the Agents party thereto (incorporated by reference to the registrant’s current report on Form 8-K filed on June 16, 2008 (File No. 1-13251)) | |
| **1.3 | Amended and Restated Selling Agent Agreement, dated as of July 22, 2008 among the Company and the Agents party thereto (incorporated by reference to the registrant’s current report on Form 8-K filed on July 25, 2008 (File No. 1-13251)) | |
| **1.4 | Standard Underwriting Provisions (Preferred Stock) (incorporated by reference to the registrant’s current report on Form 8-K filed on November 12, 1999 (File No. 1-13251)) | |
| ***1.5 | Standard Underwriting Provisions (Warrants) | |
| **4.1 | Indenture, dated as of October 1, 2000, between the Company and The Bank of New York Mellon, as successor to J.P. Morgan Chase Bank, National Association, formerly Chase Manhattan Bank (incorporated by reference to Exhibit 4.1 to the registrant’s current report on Form 8-K filed on October 5, 2000) | |
| **4.2 | Fourth Supplemental Indenture, dated as of January 16, 2003, between the registrant and Deutsche Bank Trust Company Americas (incorporated by reference to the registrant’s current report on Form 8-K filed on January 17, 2003 (File No. 1-13251)) | |
| **4.3 | Amended Fourth Supplemental Indenture, dated as of December 17, 2004, between the Company and Deutsche Bank Trust Company Americas (incorporated by reference to the registrant’s current report on Form 8-K filed on January 5, 2005 (File No. 1-13251)) | |
| **4.4 | Second Amended Fourth Supplemental Indenture, dated as of July 22, 2008, between the Company and Deutsche Bank Trust Company Americas (incorporated by reference to the registrant’s current report on Form 8-K filed on July 25, 2008 (File No. 1-13251)) | |
| **4.5 | Sixth Supplemental Indenture, dated as of October 15, 2008, between the Company and The Bank of New York Mellon (incorporated by reference to the registrant’s current report on Form 8-K filed on October 15, 2008 (File No. 1-13251)) | |
| ***4.6 | Form of Warrant Agreement | |
| *4.7 | Amended and Restated Certificate of Incorporation of SLM Corporation | |
| *4.8 | Amended Bylaws of the Company | |
| **4.9 | Medium Term Note Master Note, Series A (incorporated by reference to the registrant’s current report on Form 8-K filed on November 7, 2001 (File No. 1-13251)) | |
| *4.10 | Form of Fixed Rate Medium Term Note, Series A | |
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| Exhibit |
Description of Document | |
| *4.11 | Form of CD Rate Floating Rate Medium Term Note, Series A | |
| *4.12 | Form of CMT Rate Floating Rate Medium Term Note, Series A | |
| *4.13 | Form of Commercial Paper Rate Floating Rate Medium Term Note, Series A | |
| *4.14 | Form of Federal Funds Rate Floating Rate Medium Term Note, Series A | |
| *4.15 | Form of LIBOR Floating Rate Medium Term Note, Series A | |
| *4.16 | Form of Prime Rate Floating Rate Medium Term Note, Series A | |
| *4.17 | Form of Treasury Bill Rate Floating Rate Medium Term Note, Series A | |
| *4.18 | Form of CPI-Linked Floating Rate Medium Term Note, Series A | |
| **4.19 | Medium Term Note Master Note, Series B (incorporated by reference to the registrant’s current report on Form 8-K filed on January 28, 2003 (File No. 1-13251)) | |
| *4.20 | Form of Fixed Rate Medium Term Note, Series B | |
| *4.21 | Form of Floating Rate-Commercial Paper Rate Medium Term Note, Series B | |
| *4.22 | Form of Floating Rate-LIBOR Medium Term Note, Series B | |
| *4.23 | Form of Floating Rate-Prime Rate Medium Term Note, Series B | |
| *4.24 | Form of Floating Rate-Treasury Bill Rate Medium Term Note, Series B | |
| *4.25 | Form of Floating Rate-CMT Rate Medium Term Note, Series B | |
| *4.26 | Form of Floating Rate-Consumer Price Index—Linked Note, Series B | |
| **4.27 | Officers’ Certificate Establishing the Terms of the Medium Term Notes, Series B (incorporated by reference to the registrant’s current report on Form 8-K filed on January 28, 2003 (File No. 1-13251)) | |
| **4.28 | Officers’ Certificate Amending and Restating the Terms of the Medium Term Notes, Series B (incorporated by reference to the registrant’s current report on Form 8-K filed on January 11, 2005 (File No. 1-13251)) | |
| **4.29 | Officers’ Certificate Amending and Restating the Terms of the Medium Term Notes, Series B (incorporated by reference to the registrant’s current report on Form 8-K filed on July 25, 2008 (File No. 1-13251)) | |
| *5.1 | Opinion of Mark L. Heleen, Esq. | |
| *12.1 | Statement of Computation of Ratio of Earnings to Fixed Charges and Preferred Stock Dividends | |
| *23.1 | Consent of Mark L. Heleen, Esq. (to be included in Exhibit 5.1) | |
| *23.2 | Consent of PricewaterhouseCoopers LLP | |
| *24.1 | Power of Attorney (on the signature page hereto) | |
| *25.1 | Statement of Eligibility of Trustee on Form T-1 of The Bank of New York Mellon | |
| *25.2 | Statement of Eligibility of Trustee on Form T-1 of Deutsche Bank Trust Company Americas | |
| * | Filed herewith. |
| ** | Previously filed. |
| *** | To be filed pursuant to an amendment or as an exhibit to a Current Report on Form 8-K. |
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| Item 17. | Undertakings |
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(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 foregoing do not apply if the information required to be included in a post-effective amendment is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, 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) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 420B 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
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part of the registration statement will, as the 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.
(6) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.
(8) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication such issue.
(9) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, SLM Corporation certifies that it has reasonable grounds to believe that it meets all of 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 Town of Reston, Commonwealth of Virginia, on October 7, 2008.
| SLM CORPORATION |
| /s/ ALBERT L. LORD |
| By: Albert L. Lord |
| Its: Vice Chairman and Chief Executive Officer |
Each person whose signature appears below constitutes and appoints each of John F. Remondi and Mary F. Eure and each or any of them (with full power to act alone) as his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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.
| Signature |
Title |
Date | ||
| /s/ ANTHONY P. TERRACCIANO Anthony P. Terracciano |
Chairman of the Board of Directors | October 2, 2008 | ||
| /s/ ALBERT L. LORD Albert L. Lord |
Vice Chairman and Chief Executive Officer | October 2, 2008 | ||
| /s/ JOHN F. REMONDI John F. Remondi |
Executive Vice President, Chief Financial Officer and Vice Chairman |
October 2, 2008 | ||
| /s/ ANN TORRE BATES Ann Torre Bates |
Director | October 2, 2008 | ||
| /s/ WILLIAM M. DIEFENDERFER, III William M. Diefenderfer III |
Director | October 2, 2008 | ||
| /s/ DIANE SUITT GILLELAND Diane Suitt Gilleland |
Director | October 2, 2008 | ||
| /s/ EARL A. GOODE Earl A. Goode |
Director | October 2, 2008 | ||
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| Signature |
Title |
Date | ||
| /s/ RONALD F. HUNT Ronald F. Hunt |
Director | October 2, 2008 | ||
| /s/ MICHAEL E. MARTIN Michael E. Martin |
Director | October 2, 2008 | ||
| /s/ BARRY A. MUNITZ Barry A. Munitz |
Director | October 2, 2008 | ||
| /s/ HOWARD H. NEWMAN Howard H. Newman |
Director | October 2, 2008 | ||
| /s/ A. ALEXANDER PORTER, JR. A. Alexander Porter, Jr. |
Director | October 2, 2008 | ||
| /s/ FRANK C. PULEO Frank C. Puleo |
Director | October 2, 2008 | ||
| /s/ WOLFGANG SCHOELLKOPF Wolfgang Schoellkopf |
Director | October 2, 2008 | ||
| /s/ STEVEN L. SHAPIRO Steven L. Shapiro |
Director | October 2, 2008 | ||
| /s/ J. TERRY STRANGE J. Terry Strange |
Director | October 2, 2008 | ||
| /s/ BARRY L. WILLIAMS Barry L. Williams |
Director | October 2, 2008 | ||
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EXHIBIT INDEX
| Exhibit |
Description of Document | |
| ***1.1 | Form of Underwriting Agreement (Debt Securities) | |
| **1.2 | SLM Corporation Medium Term Notes, Series A, Amended and Restated Distribution Agreement, dated as of June 11, 2008, among the Company and the Agents party thereto (incorporated by reference to the registrant’s current report on Form 8-K filed on June 16, 2008 (File No. 1-13251)) | |
| **1.3 | Amended and Restated Selling Agent Agreement, dated as of July 22, 2008 among the Company and the Agents party thereto (incorporated by reference to the registrant’s current report on Form 8-K filed on July 25, 2008 (File No. 1-13251)) | |
| **1.4 | Standard Underwriting Provisions (Preferred Stock) (incorporated by reference to the registrant’s current report on Form 8-K filed on November 12, 1999 (File No. 1-13251)) | |
| ***1.5 | Standard Underwriting Provisions (Warrants) | |
| **4.1 | Indenture, dated as of October 1, 2000, between the Company and The Bank of New York Mellon, as successor to J.P. Morgan Chase Bank, National Association, formerly Chase Manhattan Bank (incorporated by reference to Exhibit 4.1 to the registrant’s current report on Form 8-K filed on October 5, 2000) | |
| **4.2 | Fourth Supplemental Indenture, dated as of January 16, 2003, between the registrant and Deutsche Bank Trust Company Americas (incorporated by reference to the registrant’s current report on Form 8-K filed on January 17, 2003 (File No. 1-13251)) | |
| **4.3 | Amended Fourth Supplemental Indenture, dated as of December 17, 2004, between the Company and Deutsche Bank Trust Company Americas (incorporated by reference to the registrant’s current report on Form 8-K filed on January 5, 2005 (File No. 1-13251)) | |
| **4.4 | Second Amended Fourth Supplemental Indenture, dated as of July 22, 2008, between the Company and Deutsche Bank Trust Company Americas (incorporated by reference to the registrant’s current report on Form 8-K filed on July 25, 2008 (File No. 1-13251)) | |
| **4.5 | Sixth Supplemental Indenture, dated as of October 15, 2008, between the Company and The Bank of New York Mellon (incorporated by reference to the registrant’s current report on Form 8-K filed on October 15, 2008 (File No. 1-13251)) | |
| ***4.6 | Form of Warrant Agreement | |
| *4.7 | Amended and Restated Certificate of Incorporation of SLM Corporation | |
| *4.8 | Amended Bylaws of the Company | |
| **4.9 | Medium Term Note Master Note, Series A (incorporated by reference to the registrant’s current report on Form 8-K filed on November 7, 2001 (File No. 1-13251)) | |
| *4.10 | Form of Fixed Rate Medium Term Note, Series A | |
| *4.11 | Form of CD Rate Floating Rate Medium Term Note, Series A | |
| *4.12 | Form of CMT Rate Floating Rate Medium Term Note, Series A | |
| *4.13 | Form of Commercial Paper Rate Floating Rate Medium Term Note, Series A | |
| *4.14 | Form of Federal Funds Rate Floating Rate Medium Term Note, Series A | |
| *4.15 | Form of LIBOR Floating Rate Medium Term Note, Series A | |
| *4.16 | Form of Prime Rate Floating Rate Medium Term Note, Series A | |
| *4.17 | Form of Treasury Bill Rate Floating Rate Medium Term Note, Series A | |
| *4.18 | Form of CPI-Linked Floating Rate Medium Term Note, Series A | |
| Exhibit |
Description of Document | |
| **4.19 | Medium Term Note Master Note, Series B (incorporated by reference to the registrant’s current report on Form 8-K filed on January 28, 2003 (File No. 1-13251)) | |
| *4.20 | Form of Fixed Rate Medium Term Note, Series B | |
| *4.21 | Form of Floating Rate-Commercial Paper Rate Medium Term Note, Series B | |
| *4.22 | Form of Floating Rate-LIBOR Medium Term Note, Series B | |
| *4.23 | Form of Floating Rate-Prime Rate Medium Term Note, Series B | |
| *4.24 | Form of Floating Rate-Treasury Bill Rate Medium Term Note, Series B | |
| *4.25 | Form of Floating Rate-CMT Rate Medium Term Note, Series B | |
| *4.26 | Form of Floating Rate-Consumer Price Index—Linked Note, Series B | |
| **4.27 | Officers’ Certificate Establishing the Terms of the Medium Term Notes, Series B (incorporated by reference to the registrant’s current report on Form 8-K filed on January 28, 2003 (File No. 1-13251)) | |
| **4.28 | Officers’ Certificate Amending and Restating the Terms of the Medium Term Notes, Series B (incorporated by reference to the registrant’s current report on Form 8-K filed on January 11, 2005 (File No. 1-13251)) | |
| **4.29 | Officers’ Certificate Amending and Restating the Terms of the Medium Term Notes, Series B (incorporated by reference to the registrant’s current report on Form 8-K filed on July 25, 2008 (File No. 1-13251)) | |
| *5.1 | Opinion of Mark L. Heleen, Esq. | |
| *12.1 | Statement of Computation of Ratio of Earnings to Fixed Charges and Preferred Stock Dividends | |
| *23.1 | Consent of Mark L. Heleen, Esq. (to be included in Exhibit 5.1) | |
| *23.2 | Consent of PricewaterhouseCoopers LLP | |
| *24.1 | Power of Attorney (on the signature page hereto) | |
| *25.1 | Statement of Eligibility of Trustee on Form T-1 of The Bank of New York Mellon | |
| *25.2 | Statement of Eligibility of Trustee on Form T-1 of Deutsche Bank Trust Company Americas | |
| * | Filed herewith. |
| ** | Previously filed. |
| *** | To be filed pursuant to an amendment or as an exhibit to a Current Report on Form 8-K. |