Capitalization
The following table sets forth our consolidated cash and cash equivalents and capitalization as of December 31, 2020 on an actual basis and an as adjusted
basis after giving effect to the offering of the notes and the use of proceeds therefrom. See Use of proceeds. This table should be read in conjunction with, and is qualified in its entirety by reference to, the information contained or
incorporated by reference in this prospectus supplement and the accompanying prospectus, including our audited consolidated financial statements and related notes.
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As of December 31, 2020
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Actual
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As Adjusted(7)
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(amounts in millions,
except share amounts)
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Cash and cash equivalents
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$
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259.6
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$
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255.1
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Short-term debt
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Short-term debt(1)
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153.1
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153.1
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Total short-term debt
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153.1
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153.1
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Long-term debt
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Revolving credit facility
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3.625% senior notes due 2022(2)
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299.2
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3.350% senior notes due 2026(3)
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396.5
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396.5
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3.150% senior notes due 2027(4)
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296.4
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296.4
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3.500% senior notes due 2028(5)
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444.8
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444.8
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2.300% senior notes due 2031 offered hereby(6)
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295.5
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Total long-term debt
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1,436.9
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1,433.2
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Total debt
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1,590.0
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1,586.3
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Shareholders equity
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Common stock, par value $0.01authorized 200,000,000, shares; outstanding 54,382,659
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0.6
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0.6
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Additional paid-in capital
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4.9
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4.9
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Retained earnings
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2,393.7
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2,393.7
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Total accumulated other comprehensive income (loss)
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(329.2
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(329.2
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Noncontrolling interest
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15.4
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15.4
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Total shareholders equity
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2,085.4
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2,085.4
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Total capitalization
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$
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3,675.4
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$
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3,671.7
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(1)
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Amount of short-term debt consists of $150.0 million of commercial paper borrowings and $3.1 million of borrowings that support certain of our international operations.
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(2)
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Actual amount represents $300.0 million aggregate principal amount of notes, net of original issue discount and unamortized debt issuance costs.
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(3)
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Actual amount represents $400.0 million aggregate principal amount of notes, net of original issue discount and unamortized debt issuance costs.
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(4)
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Actual amount represents $300.0 million aggregate principal amount of notes, net of original issue discount and unamortized debt issuance costs.
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(5)
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Actual amount represents $450.0 million aggregate principal amount of notes, net of original issue discount and unamortized debt issuance costs.
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(6)
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As adjusted amount represents the $300.0 million aggregate principal amount of the notes offered hereby, net of any discounts and debt issuance costs.
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(7)
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As adjusted amount does not reflect the make-whole premium for the redemption of our 3.625% Senior Notes due 2022.
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S-10
Description of notes
The following description of the terms of the notes offered hereby supplements, and to the extent it is inconsistent therewith replaces, the description of the
general terms of debt securities set forth in the accompanying prospectus, to which description reference is hereby made. Capitalized terms used but not defined in this description have the meanings specified in the base indenture (as defined
below). In this section of this prospectus supplement, references to we, our, us and the Company are to Hubbell Incorporated (and not its subsidiaries) and any person that succeeds thereto, and is
substituted therefor, under the terms of the indenture (as defined below).
General
The notes will constitute a series of debt securities to be issued under the Indenture, dated September 15, 1995 (the base indenture), between the Company and The Bank of New York Mellon Trust
Company, N.A. (formerly known as The Bank of New York Trust Company, N.A. (successor as trustee to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank, formerly known as The Chase Manhattan Bank, formerly known as Chemical Bank)), the
trustee) as supplemented by a Sixth Supplemental Indenture to be entered into between us and the trustee (the sixth supplemental indenture, and together with the base indenture, the indenture).
The aggregate principal amount of the notes initially will be $300,000,000. The notes will mature and become due and payable, together with any accrued and unpaid
interest thereon, on March 15, 2031 (the stated maturity date). The notes will bear interest at the rate of 2.300% per annum from March 12, 2021.
Interest on the notes will be payable semi-annually in arrears on March 15 and September 15 of each year, beginning on September 15, 2021, to the Persons (as defined in the base indenture) in whose names the
respective notes are registered at the close of business on the March 1 and September 1 (whether or not a Business Day) preceding the relevant interest payment dates. If any interest payment date is not a Business Day, then payment will be made on
the next succeeding Business Day, but without any additional interest or other amount.
Business Day means, with respect to the notes, any
day other than a Saturday, Sunday or other day on which banking institutions in New York City or in the city where the Corporate Trust Office (as defined in the base indenture) is located are authorized or obligated by law, regulation or executive
order to close.
Interest payable on any interest payment date (and the stated maturity date) shall be the amount of interest accrued from, and
including, the immediately preceding interest payment date in respect of which interest has been paid or duly provided for (or from and including the date of the sixth supplemental indenture, if no interest has previously been paid or duly provided
for with respect to the notes) to, but excluding, such interest payment date (or the stated maturity date).
Interest on the notes will be computed on
the basis of a 360-day year consisting of twelve 30-day months.
The
notes will not have the benefit of any sinking fund.
The notes will initially be represented by one or more registered notes in global form, but in
certain limited circumstances may be represented by notes in definitive form. See Book-entry procedures. The notes will be issued in Dollars (as defined in the base indenture) and only in minimum denominations of $2,000 and
integral multiples of $1,000 in excess thereof.
Further issuance of additional notes
We may, from time to time, without notice to or consent of the holders of the notes, create and issue additional notes having the same terms and conditions and with the same CUSIP, ISIN and/or other identifying
number as
S-11
the notes offered hereby, in an unlimited aggregate principal amount, except for issue date, issue price, initial interest accrual date and the date of the first payment of interest thereon. Any
such additional notes will be consolidated with the notes offered hereby to form a single series of debt securities under the indenture, provided, that any such additional notes that are not fungible with the notes offered hereby for U.S.
federal income tax purposes will have a separate CUSIP, ISIN and/or other identifying number, if applicable, than the notes offered hereby.
Ranking
The notes will be our unsecured, unsubordinated obligations and will rank equally in right of payment with all of our other existing and future
unsecured, unsubordinated indebtedness from time to time outstanding. The notes will be effectively subordinated in right of payment to all of our current and future secured indebtedness to the extent of the value of the assets securing such
indebtedness.
The indenture does not limit the aggregate principal amount of debt securities that the Company may issue. The indenture does not contain
any provisions that would limit the ability of the Company or its subsidiaries to incur indebtedness.
The Company derives substantially all of its
operating income from, and holds most of its assets through, its subsidiaries. As a result, the Company is dependent on the cash flow of its subsidiaries to meet its debt obligations, including its obligations under the notes. These subsidiaries are
separate and distinct legal entities and will have no obligation to pay any amounts due on the notes or provide the Company with funds for its payment obligations with respect thereto, whether by dividends, distributions, loans or otherwise. As a
result, the notes will be structurally subordinated in right of payment to existing or future preferred stock, indebtedness, guarantees and other liabilities, including trade payables, of our subsidiaries. Further, provisions of applicable law, such
as those limiting the payment of dividends, could limit the ability of the Companys subsidiaries to pay dividends or make payments or other distributions to the Company, and the Companys subsidiaries could agree to contractual
restrictions on their ability to pay dividends or make payments or other distributions to the Company. In addition, the rights of the Company and its creditors, including the holders of the notes, to participate in the assets of any subsidiary upon
the subsidiarys liquidation or reorganization will be subject to the prior claims of such subsidiarys creditors except to the extent that the Company may itself be a creditor of such subsidiary with recognized claims against such
subsidiary.
As of December 31, 2020 on an as adjusted basis after giving effect to the offering of the notes and the use of proceeds therefrom, the
Company would have had approximately $1.59 billion of outstanding indebtedness.
Payments and paying agents
Principal of, premium, if any, on and interest on the notes shall be payable in Dollars, the transfer of the notes shall be registrable, and the notes shall be
exchangeable for notes of a like aggregate principal amount, at the office or agency of the Company maintained for such purpose in New York, New York, which shall initially be the office or agency of the trustee in New York, New York;
provided, that payment of interest may be made at the option of the Company by check mailed to the Person entitled thereto at such address as shall appear in the security register or by wire transfer to an account appropriately
designated by the Person entitled to payment; and provided, further, that the Company shall pay principal of, premium, if any, on, and interest on, the notes in global form registered in the name of or held by DTC or such other
U.S. depositary as any officer of the Company may from time to time designate, or its respective nominee, by wire in immediately available funds to DTC (or such other U.S. depositary) or its nominee, as the case may be, as the holder of such notes
in global form. The security registrar for the notes shall be the trustee; and the paying agent for the notes shall initially be the trustee.
S-12
Redemption of notes
Optional redemption
The notes will be redeemable in whole or in part, at our option, at any time and
from time to time prior to December 15, 2030 (three months prior to the stated maturity date) (such date, the Par Call Date) at a redemption price equal to the greater of (the Applicable Premium) (a) 100% of the principal
amount of the notes to be redeemed and (b) the sum of the present values of the remaining scheduled payments of principal and interest thereon from the redemption date to the Par Call Date (assuming for such purpose that the notes matured on
the Par Call Date and not including any portion of such payments of interest accrued as of the redemption date) discounted to the redemption date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate (as defined below), plus 15 basis points, plus, in each case, accrued and unpaid interest thereon to, but excluding, the redemption date.
In addition, the notes will be redeemable in whole or in part, at our option, at any time and from time to time on or after the Par Call Date at a redemption price
equal to 100% of the principal amount of the notes to be redeemed, plus accrued and unpaid interest, if any, thereon to, but excluding, the redemption date. Further, installments of interest on any notes to be optionally redeemed that are due and
payable on interest payment dates falling on or prior to a redemption date will be payable on the applicable interest payment date to the holders of the notes as of the close of business on the relevant record date according to such notes and the
indenture.
Notice of any redemption will be mailed, or delivered electronically if the notes are held by DTC in accordance with DTCs customary
procedures, not less than 10 days and not more than 60 days prior to the redemption date to each holder of notes to be redeemed.
Unless we default in
payment of the redemption price, from and after the redemption date, interest will cease to accrue on the notes or portions thereof called for redemption. If less than all of the notes are to be redeemed, the notes to be redeemed will be selected by
the trustee by a method that the trustee deems to be fair and appropriate.
For purposes of the optional redemption provisions of the notes, the
following definitions will be applicable:
Comparable Treasury Issue means the United States Treasury security selected by the Quotation
Agent as having an actual or interpolated maturity comparable to the remaining term of the notes to be redeemed (assuming for such purpose that the notes matured on the Par Call Date) that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such notes.
Comparable Treasury Price means, with respect to any redemption date, (a) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, (b) if we obtain fewer than four such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations, or (c) if only one Reference Treasury Dealer Quotation is
received, such Reference Treasury Dealer Quotation.
Primary Treasury Dealer means a primary U.S. Government securities dealer in New York
City.
Quotation Agent means a Reference Treasury Dealer appointed by us.
Reference Treasury Dealer means one or more of (a) BofA Securities, Inc., HSBC Securities (USA) Inc. and J.P. Morgan Securities LLC (or their respective affiliates that are Primary Treasury
Dealers) and their respective successors; provided, that if any of the foregoing ceases to be a Primary Treasury Dealer, we will substitute therefor another Primary Treasury Dealer and (b) any other Primary Treasury Dealers selected by
us.
S-13
Reference Treasury Dealer Quotations means, with respect to one or more Reference Treasury Dealers and any
redemption date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such
Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third Business Day preceding such redemption date.
Treasury Rate means,
with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to actual or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
Change of control offer
If a Change of Control Triggering Event occurs, unless we have exercised our option to redeem the notes as described above under
Redemption of notesOptional redemption, or have defeased the notes as described below, we will be required to make an offer (a Change of Control Offer) to each holder of the notes to repurchase all or any part
(equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each holders notes in the manner and on the terms set forth in the notes. In a Change of Control Offer, we will be required to offer payment in cash equal to 101% of the
aggregate principal amount of notes repurchased, plus accrued and unpaid interest, if any, on the notes repurchased to, but excluding, the repurchase date (a Change of Control Payment). Within 30 days following any Change of Control
Triggering Event or, at our option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, a notice will be mailed to the trustee and mailed, or delivered
electronically if the notes are held by DTC in accordance with DTCs customary procedures, to holders of the notes, describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase
such notes on the repurchase date specified in the applicable notice, which date will be no earlier than 15 days and no later than 60 days from the date on which such notice is mailed (or delivered electronically) to the holders of the notes (a
Change of Control Payment Date).
The notice will, if mailed (or delivered electronically) prior to the date of consummation of the Change of
Control, state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the applicable Change of Control Payment Date specified in the notice.
On each Change of Control Payment Date, we will, to the extent lawful
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accept for payment all notes or portions of notes properly tendered pursuant to the applicable Change of Control Offer,
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deposit with the paying agent an amount equal to the Change of Control Payment in respect of all notes or portions of notes properly tendered pursuant to the
applicable Change of Control Offer, and
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deliver or cause to be delivered to the trustee the notes properly accepted together with an officers certificate stating the aggregate principal amount of
notes or portions of notes being repurchased.
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We will not be required to make a Change of Control Offer upon the occurrence of a
Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by us, and such third party purchases all notes properly tendered and not
withdrawn under its offer. In addition, we will not repurchase any notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default (as defined below) under the indenture, other than a default in the payment of
the Change of Control Payment upon a Change of Control Triggering Event.
S-14
We will be required to comply with the requirements of Rule 14e-1 under the
Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the notes as a result of a Change of Control Triggering Event. To the extent that
the provisions of any securities laws or regulations conflict with the Change of Control Offer provisions of the notes, we will comply with such securities laws and regulations and will not be deemed to have breached our obligations under the Change
of Control Offer provisions of the notes by virtue of any such conflict and compliance.
For purposes of the Change of Control Offer provisions of the
notes, the following definitions will be applicable:
Board of Directors means, as to any Person, the board of directors or managers, as
applicable, of such Person (or, if such Person is a partnership, the board of directors or other governing body of the general partner of such Person) or any authorized committee thereof.
Change of Control means the occurrence of any of the following:
(a)
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the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of
all or substantially all of our assets and our subsidiaries assets, taken as a whole, to any person, other than us or one of our subsidiaries; provided, that none of the circumstances in this clause (a) will be a Change of Control
if the persons that beneficially own our Voting Stock immediately prior to the transaction own, directly or indirectly, Voting Stock of the transferee person representing a majority of the voting power of the transferee persons Voting Stock
immediately after giving effect to the transaction;
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(b)
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the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person becomes the beneficial owner (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of our outstanding Voting Stock, or other Voting Stock into which the
Companys Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; provided, that a person shall not be deemed a beneficial owner of, or to own beneficially, (i) any
securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such persons affiliates until such tendered securities are accepted for purchase or exchange thereunder or (ii) any securities if
such beneficial ownership (A) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made by the Company pursuant to the applicable rules and regulations under the Exchange Act and (B) is
not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act;
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(c)
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we consolidate with, or merge with or into, any person, or any person consolidates with, or merges with or into, us, in any such event pursuant to a transaction in which any of
our outstanding Voting Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of our Voting Stock outstanding immediately prior to such
transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or any direct or indirect parent company of the surviving person immediately after giving effect to such transaction, measured by
voting power rather than number of shares;
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(d)
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the first day on which a majority of the members of the Companys Board of Directors are not Continuing Directors; or
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(e)
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the adoption of a plan relating to the liquidation or dissolution of the Company.
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Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (a) we become a direct or indirect wholly-owned subsidiary of a holding company or other person and (b)(1) the
direct or
S-15
indirect holders of the Voting Stock of such holding company or such other person immediately following that transaction are substantially the same as the holders of our Voting Stock immediately
prior to that transaction or (2) immediately following that transaction no person (other than a holding company or other person satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of
the Voting Stock of such holding company or such other person.
As used in this definition, the term person has the meaning given thereto in
Section 13(d)(3) of the Exchange Act.
The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease,
transfer, conveyance or other disposition in one or more series of related transactions of all or substantially all of our assets and the assets of our subsidiaries, taken as a whole. Although there is a limited body of case law
interpreting the phrase substantially all, there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of notes to require us to repurchase such holders notes as a result of a
sale, lease, transfer, conveyance or other disposition in one or more series of related transactions of less than all of our and our subsidiaries assets, taken as a whole, to another person may be uncertain.
Change of Control Triggering Event means the occurrence of both a Change of Control and a Rating Event.
Continuing Directors means, as of any date of determination, any member of the Companys Board of Directors who (a) was a member of such Board
of Directors on the date the notes were issued or (b) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the
time of such nomination, election or appointment (either by a specific vote or by approval of our proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).
Investment Grade means a rating equal to or higher than Baa3 (or the equivalent) by Moodys and BBB- (or
the equivalent) by S&P, and the equivalent Investment Grade credit rating from any replacement Rating Agency or Rating Agencies selected by us.
Moodys means Moodys Investors Service, Inc., a subsidiary of Moodys Corporation, and its successors.
Rating Agencies means (a) each of Moodys and S&P; and (b) if any of Moodys or S&P ceases to rate the notes or fails to
make a rating of the notes publicly available for reasons outside of our control, a nationally recognized statistical rating organization as defined under Section 3(a)(62) of the Exchange Act selected by us (as certified by a
resolution of the Companys Board of Directors) as a replacement agency for Moodys or S&P, or both of them, as the case may be.
Rating Event means the rating on the notes is lowered by both Rating Agencies and the notes are rated below Investment Grade by both Rating Agencies, in
any case on any day during the period (which period will be extended so long as the rating of the notes is under publicly announced consideration for a possible downgrade by either of the Rating Agencies) commencing upon the earlier of (a) the
first public notice of the occurrence of a Change of Control or (b) the first public notice of our intention to effect a Change of Control, and in each case, ending 60 days following the consummation of the Change of Control. However, a Rating
Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Change of Control Triggering Event for purposes of the definition
of Change of Control Triggering Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform a responsible officer of the trustee in writing at the
Companys request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control.
S&P means S&P Global Ratings, and its successors.
S-16
Voting Stock means, with respect to any specified person (as that term is used in
Section 13(d)(3) of the Exchange Act) as of any date, the capital stock or other equity interests of such person that is at the time entitled to vote generally in the election of the Board of Directors of such person.
Covenants
We will not be restricted by the indenture from
incurring indebtedness or other obligations, paying dividends or making distributions on our capital stock, or repurchasing or redeeming our capital stock. The indenture also will not require the maintenance of any financial ratios or specified
levels of net worth or liquidity.
Limitation on liens
The Company will not create or assume, and will not permit a Restricted Subsidiary (as defined below) to create or assume, otherwise than in favor of the Company or a Subsidiary (as defined below), any indebtedness
for borrowed money (Debt) secured by a Mortgage (as defined below) upon any Principal Property (as defined below) or upon any shares of capital stock or Debt issued by any Subsidiary and owned by the Company or any Restricted Subsidiary,
whether now owned or hereafter acquired, without making effective provision whereby the notes will be secured equally and ratably with, or at our option, senior to, such Debt, so long as such Debt is so secured; provided, that the foregoing
covenant will not be applicable to Debt secured by the following, and the Debt so secured will be excluded from any computation under the next succeeding paragraph below:
(a)
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Mortgages on property of the Company or a Restricted Subsidiary existing on the date of the sixth supplemental indenture;
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(b)
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Mortgages on property of a Corporation or other entity existing at the time such Corporation or other entity is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the properties of such Corporation or other entity (or a division of such Corporation or other entity) as an entirety or substantially as an entirety to the Company or a Restricted
Subsidiary; provided that any such Mortgage does not extend to any property owned by the Company or any Restricted Subsidiary immediately prior to such merger, consolidation, sale, lease or disposition;
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(c)
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Mortgages to secure or provide for the payment of any part of the cost of acquisition, construction, development or purchase or improvement of any such property now owned or
hereafter acquired or constructed by the Company or a Restricted Subsidiary, or on which property so acquired, constructed, developed, purchased or improved is located, and created prior to, contemporaneously with or within 270 days after the
later of, such improvement, acquisition, construction, development or purchase or the commencement of commercial operation of such property;
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(d)
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Mortgages on any such property existing at the time of acquisition thereof, whether or not assumed by the Company or such Restricted Subsidiary;
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(e)
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Mortgages on any such property of a Person at the time such Person becomes a Restricted Subsidiary;
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(f)
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Mortgages created for the sole purpose of extending, renewing or refunding any Mortgage permitted by any of clauses (a)-(e) of this covenant; provided, that the principal
amount of Debt secured thereby will not exceed the principal amount of Debt so secured at the time of such extension, renewal or refunding (plus any premium or fee payable in connection therewith) and that such extension, renewal or refunding
Mortgage will be limited to all or any part of the same property (plus improvements on such property, and plus any other property not then constituting Principal Property) that secured the Mortgage extended, renewed or refunded, or to other property
of the Company or its Restricted Subsidiaries not subject to the limitations of this covenant;
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S-17
(g)
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Mortgages for taxes or assessments or governmental charges or levies not then due and delinquent or the validity of which is being contested in good faith, and against which an
adequate reserve has been established; Mortgages on any such property created in connection with pledges or deposits to secure public or statutory obligations or to secure performance in connection with bids or contracts; materialmens,
mechanics, carriers, workmens, repairmens or other like Mortgages, or Mortgages on any such property created in connection with deposits to obtain the release of such Mortgages; Mortgages on any such property created in
connection with deposits to secure surety, stay, appeal or customs bonds; Mortgages created by or resulting from any litigation or legal proceeding which is being contested in good faith by appropriate proceedings; leases and liens, rights of
reverter and other possessory rights of the lessor thereunder; zoning restrictions, easements, rights-of-way or other restrictions on the use of real property or minor
irregularities in the title thereto; and any other Mortgages similar to those described in this clause (g), the existence of which does not, in the opinion of the Company, materially impair the use by the Company or a Restricted Subsidiary of the
affected property in the operation of the business of the Company or a Restricted Subsidiary, or the value of such property for the purposes of such business;
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(h)
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Mortgages on any contracts for production, research or development with or for the Government (as defined below), directly or indirectly, providing for advance, partial or
progress payments on such contracts and for a Mortgage, paramount to all other Mortgages, upon money advanced or paid pursuant to such contracts, or upon any material or supplies in connection with the performance of such contracts to secure such
payments to the Government; and Mortgages or other evidences of interest in favor of the Government, paramount to all other Mortgages, on any equipment, tools, machinery, land or buildings hereafter constructed, installed or purchased by the Company
or a Restricted Subsidiary primarily for the purpose of manufacturing or producing any product or performing any development work, directly or indirectly, for the Government to secure indebtedness incurred and owing to the Government for the
construction, installation or purchase of such equipment, tools, machinery, land or buildings; and
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(i)
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Mortgages created after the date of the sixth supplemental indenture on any property leased to or purchased by the Company or a Restricted Subsidiary after such date and
securing, directly or indirectly, obligations issued by a state, a territory or a possession of the United States, or any instrumentality or political subdivision of any of the foregoing, or the District of Columbia, to finance the cost of
acquisition or cost of construction of such property, provided, that the interest paid on such obligations is entitled to be excluded from gross income of the recipient pursuant to Section 103(a) of the Internal Revenue Code of 1986, as
amended (or any successor or similar provision), as in effect at the time of the issuance of such obligations.
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Notwithstanding the
restrictions described above, the Company and its Restricted Subsidiaries may create or assume Debt secured by Mortgages without equally and ratably securing the notes if, at the time of such creation or assumption, after giving effect thereto and
to the retirement of any Debt which is concurrently being retired, the aggregate amount of all such Debt secured by Mortgages (other than any Debt secured in compliance with the first paragraph of this covenant (including any Debt secured by
Mortgages permitted as described in clauses (a) through (i) thereof)) that would otherwise be subject to these restrictions, together with all Attributable Debt (as defined below) with respect to Sale and Leaseback Transactions (as defined
below) (permitted under clause (c) of, but not otherwise permitted by, the Limitation on sale and leaseback transactions covenant below) does not exceed 15% of the Companys Consolidated Net Tangible Assets (as defined
below).
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Limitation on sale and leaseback transactions
The Company will not, and will not permit a Restricted Subsidiary to, enter into any Sale and Leaseback Transaction with respect to any Principal Property owned by the Company or such Restricted Subsidiary on the
date of the sixth supplemental indenture, unless:
(a)
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the Sale and Leaseback Transaction involves a lease for a term of not more than three years,
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(b)
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the Sale and Leaseback Transaction is between the Company or such Restricted Subsidiary and the Company or a Subsidiary,
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(c)
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the Company or such Restricted Subsidiary would be entitled, at the effective date of the sale or transfer, to incur Debt secured by a Mortgage on such Principal Property
involved in such Sale and Leaseback Transaction at least equal in amount to the Attributable Debt with respect to such Sale and Leaseback Transaction without equally and ratably securing the notes pursuant to the second paragraph of the
Limitation on liens covenant above, or
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(d)
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the terms of such Sale and Leaseback Transaction are fair and arms-length (as determined in good faith by the Companys Board
of Directors) and the Company or any Restricted Subsidiary applies an amount equal to the greater of (i) the net proceeds of such sale or transfer or (ii) the Attributable Debt with respect to such Sale and Leaseback Transaction within 180
days after the receipt of the proceeds of such sale or transfer to either (or a combination) of (A) the prepayment or retirement (other than the mandatory retirement, mandatory prepayment or sinking fund payment or by payment at maturity) of
Funded Debt (as defined below) of the Company or a Restricted Subsidiary (other than Funded Debt that is subordinated to the notes) or (B) the purchase, construction or development of other comparable property.
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Consolidation, merger, sale or conveyance
The
Company will not consolidate with or merge into any other Corporation or sell or convey its properties and assets substantially as an entirety to any Corporation, unless:
(a)
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the Corporation formed by such consolidation or into which the Company is merged or the Corporation which acquires by sale or conveyance the properties and assets of the Company
substantially as an entirety (the successor corporation) is a Corporation organized and existing under the laws of the United States, any State thereof or the District of Columbia and will expressly assume, by a supplemental indenture,
executed and delivered to the trustee, in form reasonably satisfactory to the trustee, the due and punctual payment of the principal of (and premium, if any) and interest on the notes, and the performance of every covenant of the indenture on the
part of the Company to be performed or observed;
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(b)
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immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, will have
occurred and be continuing; and
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(c)
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the Company or successor corporation has delivered to the trustee an officers certificate and an opinion of counsel each stating that such consolidation, merger, sale or
conveyance and such supplemental indenture comply with this covenant and that all conditions precedent provided for in the indenture relating to such transaction have been complied with.
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Upon any consolidation with or merger into any other Corporation, or any sale or conveyance of the properties and assets of the Company substantially as an entirety
in accordance with this covenant, the successor corporation formed by such consolidation or into which the Company is merged or to which such sale or conveyance is made will succeed to, and be substituted for, and may exercise every right and power
of, the Company under the indenture with the same effect as if such successor corporation had been named as the
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Company in the indenture, and thereafter the Company (which term shall for this purpose mean Hubbell Incorporated or any successor corporation which shall theretofore have succeeded thereto, and
been substituted therefor, in the manner described in this covenant) will be relieved of all obligations and covenants under the indenture and the notes.
Notwithstanding the foregoing, any consolidation, merger, sale or conveyance between or among the Company and its Subsidiaries shall neither be subject to this
covenant nor prohibited under the indenture.
Corporate existence
Subject to the covenant set forth above under Consolidation, merger, sale or conveyance, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect
its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Company.
Certain definitions
For purpose of the above covenants and Events of default below, the following definitions will be applicable:
Attributable Debt means, with respect to a Sale and Leaseback Transaction with respect to any Principal Property, the lesser of: (a) the fair
market value of such property (as determined in good faith by the Companys Board of Directors at the time of entering into such Sale and Leaseback Transaction); or (b) the present value of the total net amount of rent required to be paid
under such lease during the remaining term thereof (including any period for which such lease has been extended and excluding any unexercised renewal or other extension options exercisable by the lessee, and excluding amounts on account of
maintenance and repairs, services, taxes and similar charges and contingent rents), discounted at the rate of interest set forth or implicit in the terms of such lease (or, if not practicable to determine such rate, the weighted average interest
rate per annum borne by the notes) compounded semi-annually. In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount will be the lesser of the net amount determined assuming termination upon the
first date such lease may be terminated (in which case the net amount will also include the amount of the penalty, but no rent will be considered as required to be paid under such lease subsequent to the first date upon which it may be so
terminated) or the net amount determined assuming no such termination.
Board of Directors means, as to any Person, the board of directors or
managers, as applicable, of such Person (or, if such Person is a partnership, the board of directors or other governing body of the general partner of such Person) or any authorized committee thereof.
Consolidated Net Tangible Assets means, at any time, the excess over current liabilities of all assets, less goodwill, trademarks, patents, other like
intangibles and the minority interests of others in Subsidiaries, of the Company and its consolidated Subsidiaries, determined on a consolidated basis in accordance with generally accepted accounting principles, as of the end of the most recently
completed accounting period of the Company for which financial information is then available.
Corporation means any corporation,
association, company (including any joint stock company and limited liability company) and business trust.
Funded Debt means Debt which
matures more than one year from the date of creation, or which is extendable or renewable at the sole option of the obligor so that it may become payable more than one year from such date or which is classified, in accordance with United States
generally accepted accounting
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principles, as long-term debt on the consolidated balance sheet for the most-recently ended fiscal quarter (or if incurred subsequent to the date of such balance sheet, would have been so
classified) of the Person for which the determination is being made. Funded Debt does not include (a) obligations created pursuant to leases, (b) any Debt or portion thereof maturing by its terms within one year from the time of any
computation of the amount of outstanding Funded Debt unless such debt shall be extendable or renewable at the sole option of the obligor in such manner that it may become payable more than one year from such time, or (c) any Debt for which
money in the amount necessary for the payment or redemption of such Debt is deposited in trust either at or before the maturity date thereof.
Government means the government of the United States and any department, agency or instrumentality or political subdivision thereof and the government
of any foreign country with which the Company or its Subsidiaries is permitted to do business under applicable law and any department, agency or political subdivision thereof.
Mortgage means, with respect to any property or assets, any mortgage, pledge, lien or encumbrance on or with respect to such property or assets (including any conditional sale or other title retention
agreement having substantially the same economic effect as any of the foregoing).
Principal Property means any parcel of real property and
related fixtures or improvements owned by the Company or any Restricted Subsidiary and located in the United States, the net book value of which (after deduction of accumulated depreciation) on the date of determination exceeds 1.0% of Consolidated
Net Tangible Assets, other than any such real property and related fixtures or improvements which, as determined in good faith by the Companys Board of Directors, is not of material importance to the total business conducted by the Company and
its Subsidiaries, taken as a whole.
Restricted Subsidiary means, with respect to the Company, any Subsidiary that is a significant
subsidiary as such term is defined in Rule 1-02(w) of Regulation S-X under the Securities Act of 1933, as amended (the Securities Act);
provided, that a Subsidiary will not be a Restricted Subsidiary if (a) it is principally engaged in the business of finance, banking, credit, leasing, insurance, investments, financial services or other similar operations, or any
combination thereof; (b) it is principally engaged in financing the Companys operations outside the continental United States of America; (c) substantially all of its assets consist of the capital stock of one or more of the
Subsidiaries engaged in the operations described in the preceding clause (a) or (b) or any combination thereof; (d) a majority of its Voting Stock will at the time be owned directly or indirectly by one or more Subsidiaries which are not
Restricted Subsidiaries; or (e)(i) it has issued and sold either (x) equity securities with aggregate net proceeds in excess of $10,000,000 or (y) debt securities aggregating $10,000,000 or more in principal amount, or (ii) the
Company has sold equity securities of such Subsidiary with aggregate net proceeds to the Company in excess of $10,000,000; provided, however, that the securities referred to in this clause (e) were issued under a registration
statement filed with the SEC pursuant to the Securities Act.
Sale and Leaseback Transaction means any arrangement with any Person providing
for the leasing by the Company or any Restricted Subsidiary of any Principal Property which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person with the intention of taking back a lease of such
property; provided, that Sale and Leaseback Transaction will not include such arrangements that were existing on the date of the sixth supplemental indenture or at the time any Person owning a Principal Property becomes a
Restricted Subsidiary.
Subsidiary means any Corporation or other entity of which at least a majority of the outstanding capital stock or
other equity interests having by the terms thereof ordinary voting power to elect a majority of the directors, managers, trustees or equivalent of such Corporation or other entity, irrespective of whether or not, at the
S-21
time, capital stock or other equity interests of any other class or classes of such Corporation or other entity have or might have voting power by reason of the happening of any contingency, is
at the time, directly or indirectly, owned or controlled by the Company or by one or more Subsidiaries thereof, or by the Company and one or more Subsidiaries thereof.
Events of default
Event of Default means, with respect to the notes, any one of the following
events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law, pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body):
(a)
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default in the payment of any interest upon the notes when it becomes due and payable, and continuance of such default for a period of 30 days;
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(b)
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default in the payment of the principal of (and premium, if any, on) the notes on the date on which such amount becomes due and payable, whether at the stated maturity date or by
declaration of acceleration, call for redemption, repayment at the option of the holders of the notes or otherwise;
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(c)
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default in the performance, or breach, of any covenant or warranty of the Company in the indenture (other than any covenant or warranty a default in whose performance or whose
breach is dealt with elsewhere in this Events of default section or any covenant or warranty which has been included in the indenture solely for the benefit of debt securities of series other than the notes), and continuance of
such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the trustee or to the Company and the trustee by the holders of at least 25% in principal amount of the outstanding notes,
a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a notice of default under the indenture;
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(d)
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the entry of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or other similar law, or a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
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(e)
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the commencement by the Company of a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or the consent by it to the entry of an order for relief in an involuntary case under any such law or to the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of its creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such action.
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If an Event of Default with respect to the notes at that time
outstanding (other than an Event of Default specified in paragraphs (d) or (e) above) occurs and is continuing, then in every such case the trustee or the holders of not less than 25% in principal amount of the outstanding notes may declare the
principal amount of all the notes to be due and payable immediately, by a notice in writing to the Company (and to the trustee if
S-22
given by holders), and upon any such declaration such principal amount, plus accrued and unpaid interest (and premium, if any) (the Default Amount), shall become immediately due and
payable. Upon payment of the Default Amount in the currency in which the notes are denominated (except as otherwise provided pursuant to the indenture), all obligations of the Company in respect of the payment of principal of the notes shall
terminate. Notwithstanding any other provision of this Events of default section, if an Event of Default specified in paragraphs (d) or (e) above occurs, then the Default Amount on the notes then outstanding will ipso
facto become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder.
At any time after
such a declaration of acceleration with respect to the notes has been made and before a judgment or decree for payment of the money due has been obtained by the trustee as provided in the indenture, the holders of a majority in principal amount of
the outstanding notes, by written notice to the Company and the trustee, may rescind and annul such declaration and its consequences if,
(a)
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the Company has paid or deposited with the trustee a sum in the currency in which the notes are denominated (except as otherwise provided pursuant to the indenture) sufficient to
pay (A) all overdue installments of interest on the notes, (B) the principal of (and premium, if any, on) the notes which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in the notes, (C) to the extent that payment of such interest is lawful, interest upon overdue installments of interest on the notes, and (D) all sums paid or advanced by the trustee under the indenture and the
reasonable compensation, expenses, disbursements and advances of the trustee, its agents and counsel and any other amounts due the trustee under the indenture; provided, however, that all sums payable under this clause (D) shall
be paid in Dollars; and
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(b)
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all Events of Default with respect to the notes, other than the nonpayment of the principal of the notes which has become due solely by such declaration of acceleration, have
been cured or waived as provided below.
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No such rescission and waiver shall affect any subsequent default or impair any right consequent
thereon.
The holders of not less than a majority in principal amount of the outstanding notes may on behalf of the holders of all the notes waive, by
notice to the trustee and the Company, any past default under the indenture with respect to the notes and its consequences, except a default
(a)
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in the payment of the principal of (or premium, if any) or interest on the notes, or in the payment of any sinking fund installment or analogous obligation with respect to the
notes, or
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(b)
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in respect of a covenant or provision of the indenture which pursuant to the indenture cannot be modified or amended without the consent of the holder of each outstanding note
affected.
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Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of the notes under the indenture, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
Modification of indenture
Changes not requiring approval of holders of the notes
Without prior notice to or the consent of any holders of the notes, the Company, when authorized by a resolution of its Board of Directors, and the trustee, at any
time and from time to time, may enter into one or
S-23
more indentures supplemental to the indenture, in form reasonably satisfactory to the trustee, for any of the following purposes:
(a)
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to evidence the succession of another Corporation (as defined above) to the rights of the Company, and the assumption by such successor of the covenants and obligations of the
Company, under the indenture and the notes; or
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(b)
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to add to the covenants of the Company for the benefit of the holders of the notes, or to surrender any right or power conferred by the indenture upon the Company; or
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(c)
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to add any additional Events of Default; or
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(d)
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to add or change any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the issuance of debt securities of any series in bearer form,
registrable or not registrable, and with or without coupons, to permit bearer securities to be issued in exchange for registered securities, to permit bearer securities to be issued in exchange for bearer securities of other authorized denominations
or to permit the issuance of debt securities of any series in uncertificated form, provided that any such action shall not adversely affect the interests of the holders of debt securities of any series or any related coupons in any material
respect; or
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(e)
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to change or eliminate any of the provisions of the indenture, provided that any such change or elimination shall become effective only when there are no outstanding debt
security or coupon of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision and as to which such supplemental indenture would apply; or
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(f)
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to secure the notes or to provide that any of the Companys obligations under the notes or the indenture shall be guaranteed; or
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(g)
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to supplement any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of the notes as described in
Satisfaction and discharge or Legal defeasance and covenant defeasance below, provided that any such action shall not adversely affect the interests of the holders of the notes or any other
series of debt securities or any related coupons in any material respect; or
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(h)
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to establish the form or terms of debt securities and coupons, if any, of any series as permitted by the indenture; or
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(i)
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to evidence and provide for the acceptance of appointment under the indenture by a successor trustee with respect to the notes and to add to or change any of the provisions of
the indenture as shall be necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee, pursuant to the requirements of the indenture; or
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(j)
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to cure any ambiguity, to correct or supplement any provision of the indenture which may be defective or inconsistent with any other provision of the indenture, to eliminate any
conflict between the terms of the indenture and the notes and the Trust Indenture Act, or to make any other provisions with respect to matters or questions arising under the indenture which shall not be inconsistent with any provision of the
indenture; provided such other provisions shall not adversely affect the interests of the holders of outstanding debt securities or coupons, if any, of any series created prior to the execution of such supplemental indenture in any material
respect; or
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(k)
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to change or modify any of the provisions of the indenture; provided that any such changes or modifications shall not adversely affect the interests of
the holders of outstanding debt securities or
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S-24
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coupons, if any, of any series created prior to the execution of such supplemental indenture in any material respect; or
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(l)
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to conform the text of any provision of the indenture, as amended and supplemented from time to time, that is applicable to the notes or the notes, as applicable,
to the description of the terms of the notes in this prospectus supplement.
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Changes requiring approval of holders of notes
With the written consent of the holders of not less than a majority in principal amount of the outstanding notes, by act of said holders
delivered to the Company and the trustee, the Company, when authorized by a resolution of its Board of Directors, and the trustee may enter into an indenture or indentures supplemental to the indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the indenture or of modifying in any manner the rights of the holders under the indenture of the notes; provided, however, that no such supplemental indenture shall,
without the consent of the holder of each outstanding note affected thereby,
(a)
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change the stated maturity of the principal of, or installment of interest, if any, on, the notes, or reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption thereof, or change the currency or currencies in which the principal of (and premium, if any) or interest on the notes is denominated or payable, or adversely affect the right of repayment or repurchase, if any, at the option
of the holder, or reduce the amount of, or postpone the date fixed for, any payment under any sinking fund or analogous provisions for the notes, or impair the right to institute suit for the enforcement of any payment on or after the stated
maturity thereof (or, in the case of redemption, on or after the redemption date); or
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(b)
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reduce the percentage in principal amount of the outstanding notes required for any supplemental indenture or for any waiver of compliance with certain provisions of the
indenture or certain defaults or Events of Default under the indenture and their consequences provided for in the indenture; or
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(c)
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modify certain provisions of the indenture requiring the approval of a specified percentage of the holders of the notes, except to increase any such percentage or to provide that
certain other provisions of the indenture cannot be modified or waived without the consent of the holder of each outstanding note affected thereby; provided, however, that this clause shall not be deemed to require the consent of any
holder with respect to changes in the references to the trustee and concomitant changes in the indenture, or the deletion of this proviso, in accordance with the requirements of the indenture.
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It shall not be necessary for any act of holders of the notes under the preceding paragraph to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such act shall approve the substance thereof.
Legal defeasance and covenant defeasance
At the Companys option, either (a) the Company shall be deemed to have been Discharged (as defined below) from its obligations with respect to the notes
(legal defeasance option) or (b) the Company shall cease to be under any obligation to comply with any term, provision or condition set forth in Covenants and Change of control offer above with
respect to the notes (covenant defeasance option) at any time after the applicable conditions set forth below have been satisfied:
(a)
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the Company shall have deposited or caused to be deposited irrevocably with the trustee as trust funds in trust dedicated solely to the benefit of the holders of
the notes (i) money in an amount, or (ii) U.S.
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Government Obligations (as defined below) which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination of (i) and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the trustee, to pay and discharge each installment of principal (including any mandatory sinking fund payments) of and premium, if any, and interest on, the outstanding notes on the dates such installments of
interest or principal and premium are due;
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(b)
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such deposit shall not cause the trustee with respect to the notes to have a conflicting interest for purposes of the Trust Indenture Act with respect to the notes;
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(c)
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such defeasance will not cause the trust resulting from such deposit to constitute, unless it is qualified as, a regulated investment company under the Investment Company Act of
1940, as amended;
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(d)
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the Company delivers to the trustee an officers certificate and an opinion of counsel, each stating that all conditions precedent to the defeasance and discharge of the
notes as contemplated by this Legal defeasance and covenant defeasance section have been complied with;
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(e)
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such deposit will not result in a breach or violation of, or constitute a default under, the indenture or any other agreement or instrument to which the Company is a party or by
which it is bound;
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(f)
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no Event of Default or event (including such deposit) which, with notice or lapse of time or both, would become an Event of Default with respect to the notes shall have occurred
and be continuing on the date of such deposit and, with respect to the legal defeasance option only, no Event of Default under paragraphs (d) or (e) of Events of default or event which with the giving of notice or lapse of
time, or both, would become an Event of Default under paragraphs (d) or (e) of Events of default shall have occurred and be continuing on the 91st day after such date; and
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(g)
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the Company shall have delivered to the trustee an opinion of counsel to the effect that such defeasance will not cause the beneficial owners of the notes to recognize income,
gain or loss for U.S. federal income tax purposes and such beneficial owners will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same time as if the defeasance had not occurred, which opinion of counsel, in
the case of the legal defeasance option, must be based on a ruling from the Internal Revenue Service or a change in the applicable U.S. federal income tax law.
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Notwithstanding the foregoing, if the Company exercises its covenant defeasance option and an Event of Default under paragraphs (d) or (e) of Events of default or an event which with the
giving of notice or lapse of time, or both, would become an Event of Default under paragraphs (d) or (e) of Events of default shall have occurred and be continuing on the 91st day after the date of such deposit, the
obligations of the Company referred to under the definition of covenant defeasance option with respect to such notes shall be reinstated in full.
Discharged means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and obligations under, the notes
and to have satisfied all the obligations under the indenture relating to the notes (and the trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except (a) the rights of holders of the notes to
receive, from the trust fund described in paragraph (a) above, payment of the principal of (and premium, if any) and interest on such notes when such payments are due, (b) the Companys obligations with respect to temporary notes,
registration, transfer or exchange of the notes, mutilated, destroyed, lost and stolen notes, compensation and reimbursement of the trustee, maintenance of office or agency and holding deposited moneys and U.S. Government Obligations in trust, in
each case, as expressly provided for in the base indenture, as supplemented and amended as of the
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relevant time and (c) the rights, powers, trusts, duties and immunities of the trustee under the base indenture, as supplemented and amended as of the relevant time.
U.S. Government Obligations means securities that are (a) direct obligations of the United States for the payment of which its full faith and
credit is pledged, or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States, which, in either case under clause (a) or (b), are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository receipt.
Satisfaction and discharge
The indenture, with respect to the notes, shall upon the Companys request, cease to be of further effect (except as to any surviving rights of registration of
transfer or exchange of the notes expressly provided for in the indenture and the right to receive payments of principal (and premium, if any) and interest on the notes) and the trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of the indenture, when
(a)
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either (A) all notes theretofore authenticated and delivered (other than (i) notes which have been destroyed, lost or stolen and which have been replaced or paid as
provided in the indenture and (ii) notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in the
indenture) have been delivered to the trustee for cancellation; or (B) all notes not theretofore delivered to the trustee for cancellation, (i) have become due and payable, or (ii) will become due and payable at their stated maturity
date within one year, or (iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the trustee for the giving of notice by the trustee in the name, and at the expense,
of the Company, and the Company, in the case of (i), (ii) or (iii) of this subclause (B), has irrevocably deposited or caused to be deposited with the trustee as trust funds in trust for such purpose an amount in the currency in which the notes
are denominated sufficient to pay and discharge the entire indebtedness on the notes for principal (and premium, if any) and interest to the date of such deposit (in the case of notes which have become due and payable) or to the stated maturity date
or redemption date, as the case may be; provided, however, in the event a petition for relief under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or other
similar law, is filed with respect to the Company within 91 days after the deposit and the trustee is required to return the deposited money to the Company, the obligations of the Company under the indenture with respect to the notes shall not be
deemed terminated or discharged;
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(b)
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the Company has paid or caused to be paid all other sums payable under the indenture in respect of the notes; and
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(c)
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the Company has delivered to the trustee an officers certificate and an opinion of counsel each stating that all conditions precedent under the indenture relating to the
satisfaction and discharge of the indenture with respect to the notes have been complied with.
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Notwithstanding the foregoing, in
connection with any discharge relating to any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of the indenture to
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the extent that an amount is deposited with the trustee equal to the Applicable Premium calculated as of the date of the notice of redemption (and calculated as though the redemption date were
the date of such notice of redemption), with any deficit as of the redemption date only required to be deposited with the trustee on or prior to the redemption date.
Liability for notes
No recourse shall be had for the payment of the principal of (or premium, if any) or the
interest on the notes, or any part thereof, or of the indebtedness represented thereby, or upon any obligation, covenant or agreement of the indenture, against any incorporator, or against any stockholder, officer or director, as such, past, present
or future, of the Company (or any incorporator, stockholder, officer or director of any predecessor or successor Corporation (as defined above)), either directly or through the Company (or any such predecessor or successor Corporation (as defined
above)), whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all as set forth in the indenture.
Book-entry procedures
We have obtained the following information concerning DTC, Clearstream Banking S.A., or
Clearstream, and Euroclear Bank SA/NV, as operator of the Euroclear System, or Euroclear, and the book-entry system and procedures from sources that we believe to be reliable, but we take no responsibility for the accuracy of
this information.
The notes will be issued initially in the form of a permanent global security in registered form deposited with, or on behalf of, DTC
and registered, at the request of DTC, in the name of Cede & Co. Beneficial interests in the global security will be represented through book-entry accounts of financial institutions acting on behalf of beneficial owners as direct or
indirect participants in DTC. Investors may elect to hold their interests in the global security through either DTC (in the United States) or (in Europe) through Clearstream or through Euroclear. Investors may hold their interests in the global
security directly if they are participants of such systems, or indirectly through organizations that are participants in these systems. Interests held through Clearstream and Euroclear will be recorded on DTCs books as being held by the U.S.
depositary for each of Clearstream and Euroclear, which U.S. depositories will, in turn, hold interests on behalf of their participants customers securities accounts. Except as set forth below, the global securities may be transferred,
in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee.
Notes represented by the global security can be
exchanged for definitive securities in registered form only if
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DTC notifies us that it is unwilling or unable to continue as depositary for that global security and we do not appoint a successor depositary within 90 days
after receiving such notice,
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at any time DTC ceases to be a clearing agency registered and in good standing under the Exchange Act and we do not appoint a successor depositary within 90 days
after becoming aware of such condition,
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we at any time and in our sole discretion determine that that global security will be exchangeable for definitive securities in registered form and notify the
trustee of our decision, or
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an Event of Default with respect to the notes represented by that global security has occurred and is continuing.
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A global security that can be exchanged as described in the preceding sentence will be exchanged for definitive securities issued in authorized denominations in
registered form for the same aggregate amount. The definitive securities will be registered in such names and in such authorized denominations as DTC, pursuant to the
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instructions from its direct or indirect participants or otherwise, shall instruct the trustee. We will make principal and interest payments on the notes represented by the global security to the
paying agent which in turn will make payment to DTC or its nominee, as the case may be, as the sole registered owner and the sole holder of the notes represented by a global security for all purposes under the indenture. Accordingly, we, the
trustee, the security registrar and any paying agent will have no responsibility or liability for
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any aspect of DTCs records relating to, or payments made on account of, beneficial ownership interests in a debt security represented by a global security,
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any other aspect of the relationship between DTC and its participants or the relationship between those participants and the owners of beneficial interests in a
global security held through those participants, or
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the maintenance, supervision or review of any of DTCs records relating to those beneficial ownership interests.
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We expect that, under DTCs current practice, DTC will credit participants accounts on each payment date with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such global security as shown on DTCs records, upon DTCs receipt of funds and corresponding detail information. The underwriters or agents for the notes represented by the global
security will initially designate the accounts to be credited. Payments by participants to owners of beneficial interests in a global security will be governed by standing instructions and customary practices, as is the case with securities held for
customer accounts registered in street name, and will be the sole responsibility of those participants. Book-entry notes may be more difficult to pledge because of the lack of a physical note.
DTC
So long as DTC or its nominee is the registered
owner of a global security, DTC or its nominee, as the case may be, will be considered the sole owner and holder of the notes represented by that global security for all purposes of the notes. Except as set forth above, owners of beneficial
interests in the notes will not be entitled to have notes registered in their names, will not receive or be entitled to receive physical delivery of the notes in definitive form and will not be considered owners or holders of notes under the
indenture. Accordingly, each person owning a beneficial interest in a global security must rely on the procedures of DTC and, if that person is not a DTC participant, on the procedures of the participant through which that person owns its interest,
to exercise any rights of a holder of notes. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of the securities in certificated form. These laws may impair the ability to transfer beneficial
interests in a global security. Beneficial owners may experience delays in receiving distributions on their notes since distributions will initially be made to DTC and must then be transferred through the chain of intermediaries to the beneficial
owners account.
We understand that, under existing industry practices, if we request holders to take any action, or if an owner of a beneficial
interest in a global security desires to take any action which a holder is entitled to take under the indenture, then DTC would authorize the participants holding the relevant beneficial interests to take that action and those participants would
authorize the beneficial owners owning through such participants to take that action or would otherwise act upon the instructions of beneficial owners owning through them.
Beneficial interests in a global security will be shown on, and transfers of those ownership interests will be effected only through, records maintained by DTC and its participants for that global security. The
conveyance of notices and other communications by DTC to its participants and by its participants to owners of beneficial interests in the notes will be governed by arrangements among them, subject to any statutory or regulatory requirements in
effect.
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We understand that DTC is a limited-purpose trust company organized under the New York banking law, a banking
organization within the meaning of the New York Banking Law, a member of the U.S. Federal Reserve System, a clearing corporation within the meaning of the New York Uniform Commercial Code and a clearing agency
registered under the Exchange Act.
We understand that DTC holds the securities of its participants and facilitates the clearance and settlement of
securities transactions among its participants in such securities through electronic book-entry changes in accounts of its participants. The electronic book-entry system eliminates the need for physical certificates. DTCs participants include
securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and certain other organizations, some of which, and/or their representatives, own DTC. Banks, brokers, dealers, trust companies and others that
clear through or maintain a custodial relationship with a participant, either directly or indirectly, also have access to DTCs book-entry system. The rules applicable to DTC and its participants are on file with the SEC.
We understand that the above information with respect to DTC has been provided to its participants and other members of the financial community for informational
purposes only and is not intended to serve as a representation, warranty or contract modification of any kind.
Clearstream
We understand that
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Clearstream is incorporated under the laws of Luxembourg as a professional depositary,
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Clearstream holds securities for its participating organizations, or Clearstream participants, and facilitates the clearance and settlement of
securities transactions between Clearstream participants through electronic book-entry changes in accounts of Clearstream participants, thereby eliminating the need for physical movement of certificates,
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Clearstream provides to Clearstream participants, among other things, services for safekeeping, administration, clearance and settlement of internationally
traded securities and securities lending and borrowing,
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Clearstream interfaces with domestic securities markets in several countries,
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as a registered bank in Luxembourg, Clearstream is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector (Commission
de Surveillance du Secteur Financier),
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Clearstream participants are recognized financial institutions around the world, including underwriters, securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations and may include an underwriter, dealer, agent or purchaser engaged by us to sell the notes,
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Clearstreams U.S. Participants are limited to securities brokers and dealers and banks,
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Clearstream has established an electronic bridge with Euroclear to facilitate settlement of trades between Clearstream and Euroclear, and
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indirect access to Clearstream is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Clearstream participant either directly or indirectly.
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Distributions with respect to notes held beneficially
through Clearstream will be credited to cash accounts of Clearstream participants in accordance with its rules and procedures, to the extent received by the U.S. depositary for Clearstream.
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Euroclear
We understand that
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Euroclear was created in 1968 to hold securities for participants of Euroclear, or Euroclear participants, and to clear and settle transactions
between Euroclear participants through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates and any risk from lack of simultaneous transfers of securities and cash,
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Euroclear performs various other services, including securities lending and borrowing and interacts with domestic markets in several countries,
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Euroclear is owned by Euroclear plc, a U.K. limited liability company, and operated through a license agreement by Euroclear Bank SA/NV, known as the
Euroclear operator,
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all operations are conducted by the Euroclear operator, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the
Euroclear operator, not Euroclear plc,
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Euroclear plc establishes policy for Euroclear on behalf of Euroclear participants,
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Euroclear participants include banks, including central banks, securities brokers and dealers and other professional financial intermediaries and may include an
underwriter, dealer, agent or purchaser engaged by us to sell the notes,
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indirect access to Euroclear is also available to other firms that clear through or maintain a custodial relationship with a Euroclear participant, either
directly or indirectly,
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the Euroclear operator is a Belgian bank. As such, it is regulated by the Belgian Banking and Finance Commission and overseen as the operator of a securities
settlement system by the National Bank of Belgium,
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securities clearance accounts and cash accounts with the Euroclear operator are governed by the Terms and Conditions Governing Use of Euroclear and the related
Operating Procedures of the Euroclear System, and applicable Belgian law, which we will refer to herein as the Terms and Conditions,
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the Terms and Conditions govern transfers of securities and cash within Euroclear, withdrawals of securities and cash from Euroclear, and receipts of payments
with respect to securities in Euroclear,
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all securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts, and
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the Euroclear operator acts under the Terms and Conditions only on behalf of Euroclear participants, and has no record of or relationship with persons holding
through Euroclear participants.
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Distributions with respect to notes held beneficially through Euroclear will be credited to the cash
accounts of Euroclear participants in accordance with the Terms and Conditions, to the extent received by the U.S. depositary for Euroclear.
We
understand that investors that acquire, hold and transfer interests in the notes by book-entry through accounts with the Euroclear operator or any other securities intermediary are subject to the laws and contractual provisions governing their
relationship with their intermediary, as well as the laws and contractual provisions governing the relationship between such an intermediary and each other intermediary, if any, standing between themselves and the global securities.
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Governing law
The Indenture and the notes for all purposes shall be governed by and construed in accordance with the laws of the State of New York.
Concerning the trustee
The trustee has provided various
services to us in the past and may do so in the future in the ordinary course of its regular business.
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Certain U.S. federal income tax considerations
The following is a general discussion of certain U.S. federal income tax considerations applicable to U.S. holders and
non-U.S. holders (each as defined below) with respect to the ownership and disposition of notes acquired in this offering, but does not purport to be a complete analysis of all the potential tax
considerations. This discussion is limited to the U.S. federal income tax consequences relevant to holders who acquire notes in the initial offering at their original issue price (i.e., the first price at which a substantial
amount of notes is sold to purchasers (other than bond houses, brokers or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers) for cash) and that hold such notes as capital assets
within the meaning of Section 1221 of the U.S. Internal Revenue Code of 1986, as amended (the Code) (generally, property held for investment). This discussion does not address tax consequences relevant to subsequent purchasers of
the notes. This discussion is based on current provisions of the Code, Treasury regulations promulgated thereunder, judicial decisions and administrative rulings and published positions of the Internal Revenue Service (the IRS), each as
in effect as of the date hereof and all of which are subject to change or differing interpretations, possibly with retroactive effect, and any such change or interpretation could affect the accuracy of the statements and conclusions set forth
herein.
This discussion is for general information only and does not purport to address all aspects of U.S. federal income taxation that may be relevant
to particular holders in light of their particular circumstances or to holders subject to special rules under the U.S. federal income tax laws (including, for example, banks or other financial institutions, dealers in securities or currencies,
traders in securities that elect to apply a mark-to-market method of accounting, insurance companies, tax-exempt entities,
grantor trusts, entities or arrangements treated as partnerships for U.S. federal income tax purposes or other flow-through entities (and investors therein), subchapter S corporations, retirement plans, individual retirement accounts or other tax-deferred accounts, real estate investment trusts, regulated investment companies, accrual method holders subject to special tax accounting rules as a result of their use of financial statements, holders liable
for the alternative minimum tax, certain former citizens or former long-term residents of the United States, U.S. holders having a functional currency other than the U.S. dollar, holders who hold the notes as part of a hedge, straddle,
constructive sale, conversion transaction or other integrated transaction, controlled foreign corporations, and passive foreign investment companies). This discussion also does not address any considerations under U.S.
federal tax laws other than those pertaining to the income tax, nor does it address any considerations under any state, local or non-U.S. tax laws. In addition, this discussion does not address the tax
consequences of the ownership and disposition of the notes arising under the unearned income Medicare contribution tax pursuant to the Health Care and Education Reconciliation Act of 2010 nor, except as described below, any considerations with
respect to any withholding required pursuant to the Foreign Account Tax Compliance Act of 2010 (including temporary, proposed and final Treasury regulations promulgated thereunder and intergovernmental agreements entered in connection therewith)
(collectively, FATCA). Prospective investors should consult with their own tax advisors as to the particular tax consequences to them of the ownership and disposition of the notes, including with respect to the applicability and effect
of any U.S. federal, state, local or non-U.S. tax laws or any tax treaty, and any changes (or proposed changes) in tax laws or interpretations thereof.
If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds notes, the tax treatment of a person treated as a partner in such partnership generally will depend on the status of
the partner and the activities of the partnership. Persons that for U.S. federal income tax purposes are treated as a partner in a partnership holding the notes should consult their tax advisors regarding the tax consequences to them of the
ownership and disposition of the notes.
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THIS DISCUSSION IS FOR GENERAL INFORMATION PURPOSES ONLY, AND IS NOT INTENDED TO CONSTITUTE A COMPLETE DESCRIPTION
OF ALL TAX CONSEQUENCES RELATING TO THE OWNERSHIP AND DISPOSITION OF THE NOTES. PROSPECTIVE INVESTORS SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF THE OWNERSHIP AND DISPOSITION OF THE NOTES, INCLUDING WITH
RESPECT TO THE APPLICABILITY AND EFFECT OF ANY U.S. FEDERAL, STATE, LOCAL OR NON-U.S. INCOME TAX LAWS OR ANY TAX TREATY.
The terms of the notes provide for payments by us in excess of stated interest or principal, or prior to their scheduled payment dates, under certain circumstances. The possibility of such payments may implicate
special rules under Treasury regulations governing contingent payment debt instruments. According to those Treasury regulations, the possibility that such payments of excess or accelerated amounts will be made will not affect the amount
of income a holder recognizes in advance of the payment of such excess or accelerated amounts if there is only a remote chance as of the date the notes are issued that such payments will be made. We intend to take the position that the likelihood
that such payments will be made is remote within the meaning of the applicable Treasury regulations. Our position that these contingencies are remote is binding on a holder unless such holder discloses its contrary position to the IRS in the manner
required by applicable Treasury regulations. Our position is not, however, binding on the IRS, and if the IRS were to challenge this position successfully, a holder might be required to, among other things, accrue interest income based on a
projected payment schedule and comparable yield, which may be in excess of stated interest, and treat as ordinary income rather than capital gain any gain realized on the taxable disposition of a note. In the event a contingency described above
occurs, it could affect the amount, timing and character of the income or loss recognized by a holder. Prospective holders should consult their own tax advisors regarding the tax consequences if the notes were treated as contingent payment debt
instruments. The remainder of this discussion assumes that the notes will not be considered contingent payment debt instruments.
U.S. holders
For purposes of this discussion, the term U.S. holder means a beneficial owner of a note that is, for U.S. federal income tax purposes:
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an individual who is a citizen or resident of the United States;
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a corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized under the laws of the United States, any
state thereof, or the District of Columbia;
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an estate, the income of which is subject to U.S. federal income tax regardless of its source; or
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a trust (a) if a court within the United States is able to exercise primary supervision over the trusts administration and one or more U.S. persons
have the authority to control all substantial decisions of the trust or (b) that has a valid election in effect under applicable Treasury regulations to be treated as a U.S. person for U.S. federal income tax purposes.
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Payments of interest
It is anticipated, and this discussion assumes, that the issue price of the notes will be equal to the stated principal amount or, if the issue price is less than
the stated principal amount, the difference will be a de minimis amount (as set forth in the applicable Treasury regulations). Interest on a note generally will be taxable to a U.S. holder as ordinary interest income at the time it is
received or accrued, in accordance with the U.S. holders regular method of accounting for U.S. federal income tax purposes.
S-34
Sale, exchange, redemption or other taxable disposition of the notes
A U.S. holder generally will recognize gain or loss upon the sale, exchange, redemption or other taxable disposition of a note equal to the difference, if any,
between (a) the sum of the cash and the fair market value of any property received on such disposition (other than amounts properly attributable to accrued but unpaid interest, which amounts will be treated as interest income as described above
under Payments of interest) and (b) such U.S. holders adjusted tax basis in the note. A U.S. holders adjusted tax basis in a note generally will be equal to the amount that such U.S. holder paid for the note. Any
such gain or loss generally will be capital gain or loss, and will be long-term capital gain or loss, if, at the time of such disposition, the U.S. holder will have held the note for a period of more than one year. Long-term capital gains of non-corporate U.S. holders (including individuals) are eligible for reduced rates of taxation. The deductibility of capital losses is subject to limitations.
Information reporting and backup withholding
Information reporting generally will apply to payments of
interest on the notes and to the proceeds of a sale or other taxable disposition of a note paid to a U.S. holder unless the U.S. holder is an exempt recipient. U.S. federal backup withholding (currently at a rate of 24%) generally will apply to such
payments if the U.S. holder fails to provide the applicable withholding agent with a properly completed and executed IRS Form W-9 providing such U.S. holders correct taxpayer identification number and
certifying that such U.S. holder is not subject to backup withholding, or to otherwise establish an exemption.
Backup withholding is not an additional
tax. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a U.S. holders U.S. federal income tax liability, if any, provided that the required information is furnished timely to the IRS.
Non-U.S. holders
For purposes of this discussion, the term non-U.S. holder means a beneficial owner of a note that is neither a U.S. holder nor a partnership for U.S. federal
income tax purposes.
Payments of interest
Subject to the discussion below under Information reporting and backup withholding, payments of interest on the notes to a non-U.S. holder generally will not be subject to U.S. federal income or withholding tax under the portfolio interest exemption, provided that:
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such interest is not effectively connected with the non-U.S. holders conduct of a trade or business within the
United States;
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the non-U.S. holder does not actually or constructively own 10% or more of the total combined voting power of all classes
of our stock entitled to vote;
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the non-U.S. holder is not a controlled foreign corporation with respect to which we are a related
person within the meaning of the Code; and
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either (a) the beneficial owner of the notes provides the applicable withholding agent with a properly completed and executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, certifying, under penalties of perjury, that it is not a U.S. person and providing its name
and address or (b) a financial institution that holds the notes on behalf of the beneficial owner certifies to the applicable withholding agent, under penalties of perjury, that it has received such properly completed and executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from the beneficial owner or an intermediate financial institution and provides the
applicable withholding agent with a copy thereof.
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If a non-U.S. holder cannot satisfy the requirements of the portfolio
interest exemption described above, payments of interest made to the non-U.S. holder generally will be subject to U.S. federal withholding tax at a rate of 30%, or such lower rate as may be specified by
an applicable income tax treaty, unless such interest is effectively connected with such non-U.S. holders conduct of a trade or business within the United States (and, if required by an applicable income
tax treaty, is attributable to a permanent establishment of the non-U.S. holder in the United States) and such non-U.S. holder provides the applicable withholding agent
with a properly completed and executed IRS Form W-8ECI. In order to claim an exemption from or reduction of withholding tax under an applicable income tax treaty, a
non-U.S. holder generally must furnish to the applicable withholding agent a properly executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. Non-U.S. holders eligible for an exemption from or reduced rate of U.S. federal withholding tax under an applicable income tax treaty may
obtain a refund of any excess amounts withheld by timely filing an appropriate claim with the IRS. Non-U.S. holders should consult their own tax advisors regarding their entitlement to benefits under an
applicable income tax treaty and the requirements for claiming any such benefits.
Interest paid to a non-U.S.
holder that is effectively connected with such non-U.S. holders conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, is attributable to a
permanent establishment of the non-U.S. holder in the United States) generally will not be subject to U.S. federal withholding tax, provided that the non-U.S. holder
complies with applicable certification requirements described above. Instead, such interest generally will be subject to U.S. federal income tax on a net income basis at the regular graduated U.S. federal income tax rates in the same manner as if
such non-U.S. holder were a U.S. person. A non-U.S. holder that is a corporation may be subject to an additional branch profits tax at a rate of 30% (or such
lower rate as may be specified by an applicable income tax treaty) of its effectively connected earnings and profits for the taxable year, subject to certain adjustments.
Sale, exchange, redemption or other taxable disposition of the notes
Subject to the discussion below
under Information reporting and backup withholding, except with respect to accrued and unpaid interest (which will be treated as described above under Payments of Interest), a
non-U.S. holder generally will not be subject to U.S. federal income tax or withholding tax on any gain realized upon the sale, exchange, redemption or other taxable disposition of a note unless:
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such gain is effectively connected with the non-U.S. holders conduct of a trade or business within the United
States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment of the non-U.S. holder in the United States); or
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the non-U.S. holder is an individual who is present in the United States for 183 days or more in the taxable year of the
disposition and certain other conditions are met.
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Gain described in the first bullet point above generally will be subject to U.S.
federal income tax on a net income basis at the regular graduated U.S. federal income tax rates in the same manner as if such non-U.S. holder were a U.S. person. A
non-U.S. holder that is a corporation also may be subject to an additional branch profits tax at a rate of 30% (or such lower rate as may be specified by an applicable income tax treaty) of its
effectively connected earnings and profits for the taxable year, subject to certain adjustments.
A
non-U.S. holder described in the second bullet point above generally will be subject to U.S. federal income tax at a 30% rate (or such lower rate as may be specified by an applicable income tax treaty) on any
gain realized, which gain may be offset by U.S. source capital losses, if any, of the non-U.S. holder.
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Information reporting and backup withholding
Generally, information reporting will apply to the amount of interest paid to each non-U.S. holder and the amount of tax, if any, withheld with respect to such payments.
These reporting requirements apply regardless of whether withholding was reduced or eliminated by an applicable income tax treaty. This information may also be made available to the tax authorities in the country in which a non-U.S. holder resides or is established pursuant to the provisions of a specific treaty or agreement with those tax authorities. U.S. backup withholding (currently at a rate of 24%) is imposed on certain payments
to persons that fail to furnish the information required under the U.S. information reporting rules. Interest paid to a non-U.S. holder generally will be exempt from backup withholding if the non-U.S. holder provides the applicable withholding agent with a properly executed IRS Form W-8BEN or IRS Form
W-8BEN-E, as applicable, or otherwise establishes an exemption.
Under
Treasury regulations, the payment of proceeds from the disposition of a note by a non-U.S. holder effected at a U.S. office of a broker generally will be subject to information reporting and backup
withholding, unless the non-U.S. holder provides a properly executed IRS Form W-8BEN or IRS Form
W-8BEN-E, as applicable (or other applicable IRS Form W-8), certifying such non-U.S.
holders non-U.S. status or such non-U.S. holder otherwise establishes an exemption. The payment of proceeds from the disposition of a note by a non-U.S. holder effected at a non-U.S. office of a U.S. broker or a non-U.S. broker with certain specified U.S. connections generally
will be subject to information reporting (but not backup withholding) unless such non-U.S. holder provides a properly executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or other applicable IRS Form W-8), certifying such non-U.S.
holders non-U.S. status or such non-U.S. holder otherwise establishes an exemption. Backup withholding will apply if the disposition is subject to information
reporting and the broker has actual knowledge that the non-U.S. holder is a U.S. person.
Backup withholding is
not an additional tax. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a non-U.S. holders U.S. federal income tax liability, if any, provided that
the required information is furnished timely to the IRS. Non-U.S. holders should consult their own tax advisors regarding the application of these rules to their particular circumstances.
FATCA
Under certain circumstances, FATCA imposes a
withholding tax of 30% on payments of interest on, and, subject to the proposed U.S. Treasury regulations described below, the gross proceeds from a disposition (including a retirement or a redemption) of, the notes made to certain foreign entities
(whether such foreign entities are beneficial owners or intermediaries) unless various information reporting and due diligence requirements are satisfied. Under proposed U.S. Treasury regulations, FATCA withholding on gross proceeds from a sale or
other taxable disposition of a note (other than amounts treated as interest) would be eliminated. Taxpayers may generally rely on those regulations before they are finalized. Prospective investors that are, or intend to hold the notes through,
foreign entities should consult their own tax advisors regarding the possibility of withholding under FATCA.
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Underwriting
BofA Securities, Inc., J.P. Morgan Securities LLC and HSBC Securities (USA) Inc. are acting as joint book-running managers of the offering and as representatives of
the underwriters named below. Subject to the terms and conditions stated in the underwriting agreement dated the date of this prospectus supplement, each underwriter named below has severally agreed to purchase, and we have agreed to sell to that
underwriter, the principal amount of the notes set forth opposite the underwriters name.
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|
|
|
|
|
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Underwriter
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|
Principal amount
of notes
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|
BofA Securities, Inc.
|
|
$
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88,500,000
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J.P. Morgan Securities LLC
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|
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88,500,000
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HSBC Securities (USA) Inc.
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|
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64,500,000
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Citigroup Global Markets Inc.
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|
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13,500,000
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TD Securities (USA) LLC
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|
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13,500,000
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|
U.S. Bancorp Investments, Inc.
|
|
|
13,500,000
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|
Citizen Capital Markets, Inc.
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|
|
6,000,000
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Morgan Stanley & Co. LLC
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|
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6,000,000
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Siebert Williams Shank & Co., LLC
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|
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6,000,000
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|
|
|
|
|
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Total
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$
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300,000,000
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|
|
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The underwriting agreement provides that the obligations of the underwriters to purchase the notes included in this offering are
subject to approval of legal matters by counsel and to other conditions. The offering of the notes by the underwriters is subject to receipt and acceptance and subject to the underwriters right to reject any order in whole or in part.
Notes sold by the underwriters to the public will initially be offered at the initial public offering price set forth on the cover of this prospectus
supplement. Any notes sold by the underwriters to securities dealers may be sold at a discount from the initial public offering price not to exceed 0.400% of the principal amount of the notes. Any such securities dealers may resell any notes
purchased from the underwriters to certain other brokers or dealers at a discount from the initial public offering price not to exceed 0.250% of the principal amount of the notes. If all the notes are not sold at the initial offering price, the
underwriters may change the offering price and the other selling terms.
The following table shows the underwriting discounts that we are to pay to the
underwriters in connection with this offering (expressed as a percentage of the principal amount of the notes).
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|
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Paid by the
Company
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Per note
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|
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0.650%
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|
|
|
We estimate that our total expenses for this offering, will be approximately $1.2 million.
In connection with the offering, the underwriters may purchase and sell the notes in the open market. Purchases and sales in the open market may include short
sales, purchases to cover short positions and stabilizing purchases.
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Short sales involve secondary market sales by the underwriters of a greater number of the notes than they are required to purchase in this offering.
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Covering transactions involve purchases of the notes in the open market after the distribution has been completed in order to cover short positions.
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Stabilizing transactions involve bids to purchase the notes so long as the stabilizing bids do not exceed a specified maximum.
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Purchases to cover short positions and stabilizing purchases, as well as other purchases by the underwriters for their own accounts, may have the effect of
preventing or retarding a decline in the market price of the notes. They may also cause the price of the notes to be higher than the price that would otherwise exist in the open market in the absence of these transactions. The underwriters may
conduct these transactions in the over-the-counter market or otherwise. If the underwriters commence any of these transactions, they may discontinue them at any time.
The underwriters expect to deliver the securities to purchasers on or about March 12, 2021, which will be the seventh business day following the date of
pricing of the securities (such settlement cycle being herein referred to as T+7). Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties to
any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the securities prior to the second business day before the delivery of the securities will be required, by virtue of the fact that the securities initially will
settle in T+7, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of the securities who wish to trade the securities prior to the second business day before the delivery of the
securities should consult their own advisor.
Other relationships
The underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory,
investment management, principal investment, hedging, financing and brokerage activities. Certain of the underwriters and their respective affiliates have in the past performed commercial banking, investment banking and advisory services for us from
time to time for which they have received customary fees and reimbursement of expenses and may, from time to time, engage in transactions with and perform services for us in the ordinary course of their business for which they may receive customary
fees and reimbursement of expenses. In the ordinary course of their various business activities, the underwriters and their respective affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related
derivative securities) and financial instruments (which may include bank loans and/or credit default swaps) for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities and
instruments. Such investment and securities activities may involve our securities and instruments. For example, the underwriters and certain of their respective affiliates may hold positions in our 3.625% Senior Notes due 2022. As a result, certain
of the underwriters or their affiliates may receive a portion of the proceeds from this offering used to fund the redemption of our 3.625% Senior Notes due 2022. The underwriters and their respective affiliates may also make investment
recommendations and/or publish or express independent research views in respect of such securities or financial instruments and may hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments. In
addition, affiliates of some of the underwriters are lenders, and in some cases agents or managers for the lenders, under our revolving credit facility. Certain of those underwriters or their affiliates routinely hedge, and certain other of those
underwriters or their affiliates may hedge, their credit exposure to us consistent with their customary risk management policies. Typically, these underwriters and their affiliates would hedge such exposure by entering into transactions which
consist of either the purchase of credit default swaps or the creation of short positions in our securities, including potentially the notes offered hereby. Any such credit default swaps or short positions could adversely affect future trading
prices of the notes offered hereby. In connection with the issuance of the notes, we may enter into interest rate swap agreements with financial institutions, which may include one or more of the underwriters or their affiliates.
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We have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities
Act, or to contribute to payments the underwriters may be required to make because of any of those liabilities.
Notice to prospective investors in
Canada
The notes may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in
National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument
31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the notes must be made in accordance with an exemption from, or in a transaction not subject to, the
prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with
remedies for rescission or damages if this prospectus supplement and the accompanying prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser
within the time limit prescribed by the securities legislation of the purchasers province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchasers province or territory for
particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 of National Instrument
33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI
33-105 regarding underwriter conflicts of interest in connection with this offering.
Notice to prospective
investors in the European Economic Area
The notes may not be offered, sold or otherwise made available to any retail investor in the EEA.
For the purposes of this provision:
(a) the expression
retail investor means a person who is one (or more) of the following:
(i) a retail client as defined in point (11) of
Article 4(1) of MiFID II; or
(ii) a customer within the meaning of the Insurance Distribution Directive, where that customer would not
qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or
(iii) not a qualified investor as defined
in the Prospectus Regulation; and
(b) the expression offer includes the communication in any form and by any means of sufficient information
on the terms of the offer and the notes to be offered so as to enable an investor to decide to purchase or subscribe the notes.
Notice to
prospective investors in the United Kingdom
The notes may not be offered, sold or otherwise made available to any retail investor in the United
Kingdom. For the purposes of this provision:
(a) the expression retail investor means a person who is one (or more) of the following:
(i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue
of the EUWA; or
(ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to
implement the Insurance Distribution Directive, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or
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(iii) not a qualified investor as defined in Article 2 of the Prospectus Regulation as it forms part
of domestic law by virtue of the EUWA; and
(b) the expression offer includes the communication in any form and by any means of sufficient
information on the terms of the offer and the notes to be offered so as to enable an investor to decide to purchase or subscribe for the notes.
Any
invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) in connection with the issue or sale of the notes may only be communicated or caused to be communicated in circumstances in which
Section 21(1) of the FSMA does not apply to the issuer.
All applicable provisions of the FSMA must be complied with in respect to anything done by
any person in relation to the notes in, from or otherwise involving the United Kingdom.
Notice to prospective investors in Switzerland
This prospectus supplement and the accompanying prospectus are not intended to constitute an offer or solicitation to purchase or invest in the
notes. The notes may not be publicly offered, directly or indirectly, in Switzerland within the meaning of the Swiss Financial Services Act of June 15, 2018 (the FinSA) and no application has or will be made to admit the notes to
trading on any trading venue (exchange or multilateral trading facility) in Switzerland. Neither this prospectus supplement, the accompanying prospectus nor any other offering or marketing material relating to the notes constitutes a prospectus
pursuant to the FinSA, and neither this prospectus supplement, the accompanying prospectus nor any other offering or marketing material relating to the notes may be publicly distributed or otherwise made publicly available in Switzerland.
Notice to prospective investors in Hong Kong
Each underwriter (i) has not offered or sold and will not offer or sell in Hong Kong, by means of any document, any notes other than (a) to
professional investors as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong (the SFO) and any rules made under that Ordinance; or (b) in other circumstances which do not result in the document
being a prospectus as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the public within the meaning of that Ordinance; and (ii) has not
issued or had in its possession for the purposes of issue, and will not issue or have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the notes, which is directed
at, or the contents of which are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to the notes which are or are intended to be disposed of only to
persons outside Hong Kong or only to professional investors as defined in the SFO and any rules made under that Ordinance.
Notice to
prospective investors in Japan
The notes have not been and will not be registered pursuant to Article 4, Paragraph 1 of the Financial Instruments
and Exchange Act. Accordingly, none of the notes nor any interest therein may be offered or sold, directly or indirectly, in Japan or to, or for the account or benefit of, any resident of Japan (which term as used herein means any person
resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to or for the account or benefit of
any resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Act and any other applicable laws, regulations and ministerial guidelines of Japan
in effect at the relevant time.
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Notice to prospective investors in Singapore
This prospectus supplement and the accompanying prospectus has not been and will not be registered as a prospectus under the Securities and Futures Act, Chapter 289 of Singapore (the SFA) by the
Monetary Authority of Singapore, and the offer of the notes in Singapore is made primarily pursuant to the exemptions under Sections 274 and 275 of the SFA. Accordingly, each underwriter has not offered or sold any notes or caused such notes to be
made the subject of an invitation for subscription or purchase and will not offer or sell such notes or cause such notes to be made the subject of an invitation for subscription or purchase, and has not circulated or distributed, nor will it
circulate or distribute, this prospectus supplement and the accompanying prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of such notes, whether directly or indirectly, to
any person in Singapore other than (i) to an institutional investor as defined in Section 4A of the SFA (an Institutional Investor) pursuant to Section 274 of the SFA, (ii) to an accredited investor as defined in
Section 4A of the SFA (an Accredited Investor) or other relevant person as defined in Section 275(2) of the SFA (a Relevant Person) and pursuant to Section 275(1) of the SFA, or to any person pursuant to an
offer referred to in Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA and (where applicable) Regulation 3 of the Securities and Futures (Classes of Investors) Regulations 2018, or
(iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable exemption or provision of the SFA.
It is a condition of
the offer that where the notes are subscribed for or acquired pursuant to an offer made in reliance on Section 275 of the SFA by a Relevant Person which is:
(a) a corporation (which is not an Accredited Investor ), the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an Accredited
Investor; or
(b) a trust (where the trustee is not an Accredited Investor), the sole purpose of which is to hold investments and each beneficiary of the
trust is an individual who is an Accredited Investor,
securities or securities-based derivatives contracts (each term as defined in Section 2(1) of
the SFA) of that corporation and the beneficiaries rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has subscribed for or acquired the notes except:
(i) to an Institutional Investor, an Accredited Investor, a Relevant Person, or which arises from an offer referred to in
Section 275(1A) of the SFA (in the case of that corporation) or Section 276(4)(i)(B) of the SFA (in the case of that trust);
(ii) where no consideration is or will be given for the transfer;
(iii) where the transfer is by operation of law;
(iv) as specified in Section 276(7) of the SFA;
or
(v) as specified in Regulation 37A of the Securities and Futures (Offers of Investments) (Securities and Securities-based Derivatives
Contracts) Regulations 2018.
Singapore Securities and Futures Act product classification
Solely for the purposes of its obligations pursuant to Sections 309B(1)(a) and 309B(1)(c) of the SFA, the issuer has determined, and hereby notifies all relevant
persons (as defined in Section 309A of the SFA) that the notes are prescribed capital markets products (as defined in the Securities and Futures (Capital Markets Products) Regulations 2018) and Excluded Investment Products (as
defined in MAS Notice SFA 04-N12: Notice on the Sale of Investment Products and MAS Notice FAA-N16: Notice on Recommendations on Investment Products).
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Validity of notes
The validity of the note will be passed upon for us by Wachtell, Lipton, Rosen & Katz, New York, New York, and, with respect to matters of Connecticut law,
by Robinson & Cole LLP, Stamford, Connecticut. Certain legal matters related to the offering will be passed upon for the underwriters by Sidley Austin LLP.