We are offering
to exchange, on the terms and subject to the conditions described in this prospectus, (i) all of our outstanding unregistered 4.563% Senior Notes due 2048 for our registered 4.563% Senior Notes due 2048 and (ii) all of our outstanding
unregistered 4.663% Senior Notes due 2051 for our registered 4.663% Senior Notes due 2051. The unregistered 4.563% Senior Notes due 2048 and the unregistered 4.663% Senior Notes due 2051 are sometimes collectively referred to as the Private Notes.
The registered 4.563% Senior Notes due 2048 and the registered 4.663% Senior Notes due 2051 are sometimes collectively referred to as the Exchange Notes. The Private Notes and the Exchange Notes are sometimes collectively referred to as the Notes.
The Private Notes were issued on June 14, 2016 and, as of the date of this prospectus, an aggregate principal amount of $1,415,455,000 of the unregistered 4.563% Senior Notes due 2048 and an aggregate principal amount of $3,541,438,000 of the
unregistered 4.663% Senior Notes due 2051 are outstanding. The terms of the Exchange Notes are substantially identical to the respective series of the outstanding Private Notes, except in each case, that the Exchange Notes are registered under the
Securities Act of 1933, as amended, and will not contain any legends restricting their transfer.
THE EXCHANGE OFFERS
Purpose of the Exchange Offers
On
June 14, 2016, when we issued the Private Notes in a private offering exempt from the registration requirements of the Securities Act, we entered into a registration rights agreement with the dealer managers of the related private exchange
offers which requires us to file a registration statement under the Securities Act with respect to the registered exchange offers for the Private Notes described in this prospectus. This prospectus is the prospectus contained in the registration
statement we have filed in order to satisfy that obligation. Upon the effectiveness of the registration statement, we are required to offer to the holders of each series of Private Notes the opportunity to exchange their Private Notes for a like
principal amount of the corresponding series of Exchange Notes, which will be issued without a restrictive legend and which generally may be reoffered and resold by the holder without registration under the Securities Act. The registration rights
agreement further provides that we must use our reasonable efforts to complete the exchange offers by April 20, 2017.
Except as
provided below, upon the completion of the exchange offers, our obligations with respect to the registration of the Private Notes will terminate. A copy of the registration rights agreement has been filed as an exhibit to the registration statement
of which this prospectus is a part. Following the completion of the exchange offers, holders of Private Notes not tendered will not have any further registration rights other than as set forth in the paragraphs below, and those Private Notes will
continue to be subject to restrictions on transfer.
Under some circumstances specified in the registration rights agreement, Amgen may be
required to file a shelf registration statement for a continuous offering pursuant to Rule 415 under the Securities Act in respect of the Private Notes.
Transferability of the Exchange Notes
Based on interpretations of the Securities Act by the staff of the SEC in several no-action letters issued to third parties unrelated to us, we
believe that you, or any other person receiving Exchange Notes, may offer for resale, resell or otherwise transfer such Exchange Notes without complying with the registration and prospectus delivery requirements of the federal securities laws, if:
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you, or the person or entity acquiring Exchange Notes, are acquiring the Exchange Notes in the ordinary course of business;
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neither you nor any such person or entity is engaging in or intends to engage in a distribution of the Exchange Notes within the meaning of the federal securities laws;
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neither you nor any such person or entity has an arrangement or understanding with any person or entity to participate in any distribution of the Exchange Notes;
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neither you nor any such person or entity is an affiliate of Amgen Inc., as such term is defined under Rule 405 under the Securities Act; and
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you are not acting on behalf of any person or entity who could not truthfully make these statements.
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To participate in the exchange offers as the holder of Private Notes, you must represent that each of the statements above is true. You will
be deemed to make such representations by tendering Private Notes in the exchange offers.
Any broker-dealer or any holder of Private
Notes who is our affiliate or who intends to participate in the exchange offers for the purpose of distributing the Exchange Notes:
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will not be able to rely on the interpretations of the staff of the SEC set forth in the no-action letters described above; and
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must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the Exchange Notes, unless the sale or transfer is made pursuant to an exemption
from those requirements.
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Broker-dealers receiving Exchange Notes in exchange for Private Notes acquired for their own
account through market making or other trading activities may not rely on the interpretations of the staff of the SEC set forth in the no-action letters described above. Such broker-dealers may be deemed to be underwriters within the
meaning of the Securities Act and therefore acknowledge and agree, by tendering Private Notes in the exchange
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offers, that they will deliver a prospectus meeting the requirements of the Securities Act in connection with the resale of the Exchange Notes. By so tendering a broker-dealer will not be deemed
to admit that it is an underwriter within the meaning of the Securities Act. The SEC has taken the position that participating broker-dealers may fulfill their prospectus delivery requirements with respect to the Exchange Notes, other
than a resale of an unsold allotment from the original sale of the Private Notes, with the prospectus contained in the exchange offers registration statement. As described above, under the registration rights agreement, we have agreed to allow
participating broker-dealers and other persons, if any, subject to similar prospectus delivery requirements to use the prospectus contained in the exchange offers registration statement in connection with the resale of the Exchange Notes. See
Plan of Distribution.
You will be deemed to acknowledge and agree to the foregoing by tendering Private Notes in the exchange
offers.
Consequences of Failure to Exchange
Following the completion of the exchange offers (except as set forth under Purpose of the Exchange Offers above), holders of
Private Notes not tendered will not have any further registration rights and those Private Notes will continue to be subject to restrictions on transfer. Accordingly, the liquidity of the market for a holders Private Notes could be adversely
affected upon completion of the exchange offers if the holder does not participate in the exchange offers. See Risk FactorsRisks Relating to the NotesYour failure to tender your Private Notes in the exchange offers could limit the
trading market and trading value of your Private Notes.
Terms of the Exchange Offers
Upon the terms and subject to the conditions set forth in this prospectus, we will accept any and all Private Notes validly tendered and not
withdrawn prior to the expiration date, or another date and time to which Amgen extends the exchange offers. We will issue minimum denominations of $2,000 principal amount and any integral multiples of $1,000 of principal amount of Exchange Notes in
exchange for each minimum denomination of $2,000 principal amount and any integral multiples of $1,000 of principal amount of outstanding Private Notes accepted in the exchange offers. Holders may tender some or all of their Private Notes pursuant
to the exchange offers. However, Private Notes may be tendered only in denominations of $2,000 and integral multiples of $1,000 in principal amount.
The form and terms of each series of Exchange Notes are substantially the same as the form and terms of the corresponding series of Private
Notes except that the Exchange Notes have been registered under the Securities Act and will not bear legends restricting their transfer. Each series of Exchange Notes will evidence the same debt as the corresponding series of Private Notes and will
be issued pursuant to, and entitled to the benefits of, the indenture pursuant to which the Private Notes were issued.
As of the date of
this prospectus, $1,415,455,000 in aggregate principal amount of unregistered 4.563% Senior Notes due 2048 and $3,541,438,000 in aggregate principal amount of unregistered 4.663% Senior Notes due 2051 were outstanding and there was one registered
holder, a nominee of DTC. This prospectus is being sent to that registered holder and to others believed to have beneficial interests in the Private Notes. We intend to conduct the exchange offers in accordance with the applicable requirements of
the Exchange Act and the rules and regulations of the SEC promulgated under the Exchange Act.
We will be deemed to have accepted validly
tendered Private Notes when, as and if we have given oral or written notice thereof to the exchange agent. The exchange agent will act as agent for the tendering holders for the purpose of receiving the Exchange Notes from us. If any tendered
Private Notes are not accepted for exchange because of an invalid tender, the occurrence of other events set forth under the heading Conditions to the Exchange Offers or otherwise, such Private Notes will be returned, without
expense, to the tendering holder of those Private Notes as promptly as practicable after the expiration date, unless the exchange offers are extended.
Holders who tender Private Notes in the exchange offers will not be required to pay brokerage commissions or fees or transfer taxes with
respect to the exchange of Private Notes in the exchange offers. We will pay all charges and expenses, other than some applicable taxes, applicable to the exchange offers. See Fees and Expenses.
Expiration Date; Extensions; Amendments
The term expiration date means 5:00 p.m., New York City time, on January 10, 2017, unless we extend the exchange offers, in
which case the expiration date will mean the latest date and time to which the
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exchange offers are extended. In order to extend the exchange offers, we will notify the exchange agent and each registered holder of any extension by oral or written notice prior to 9:00 a.m.,
New York City time, on the next business day after the previously scheduled expiration date.
We reserve the right, in our sole
discretion:
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to delay accepting any Private Notes, to extend the exchange offers or, if any of the conditions set forth under Conditions to the Exchange Offers have not been satisfied, to terminate the exchange
offers by giving oral or written notice of the delay, extension or termination to the exchange agent; or
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to amend the terms of the exchange offers in any manner.
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If we amend the exchange offers in a
manner we determine constitutes a material change, we will disclose the amendment as soon as practicable in a prospectus supplement that we will distribute to the registered holders of the Notes. We will also extend the exchange offers for a period
of five to ten business days, depending upon the significance of the amendment and the manner of disclosure, if the exchange offers would otherwise expire during the five to ten business day period.
Procedures for Tendering
If you are a
DTC participant that has Private Notes which are credited to your DTC account also by book-entry and which are held of record by DTCs nominee, you may tender your Private Notes by book-entry transfer as if you were the record holder. Because
of this, references herein to registered or record holders include DTC participants with Private Notes credited to their accounts. If you are not a DTC participant, you may tender your Private Notes by book-entry transfer by contacting your broker
or opening an account with a DTC participant.
A holder who wishes to tender Private Notes in the exchange offers must cause to be
transmitted to the exchange agent an agents message, which agents message must be received by the exchange agent prior to 5:00 p.m., New York City time, on the expiration date. In addition, the exchange agent must receive a timely
confirmation of book-entry transfer of the Private Notes into the exchange agents account at DTC through ATOP under the procedure for book-entry transfers described herein along with a properly transmitted agents message, on or before
the expiration date.
The term agents message means a message, transmitted by DTC to, and received by, the exchange
agent, and forming a part of the book-entry confirmation, which states that DTC has received an express acknowledgement from the tendering participant stating that the participant has received and agrees to be bound by the terms and subject to the
condition set forth in this prospectus and that we may enforce the agreement against the participant. To receive confirmation of valid tender of Private Notes, a holder should contact the exchange agent at the telephone number listed under
Exchange Agent.
Any valid tender of Private Notes that is not withdrawn prior to the expiration date will constitute a
binding agreement between the tendering holder and us upon the terms and subject to the conditions set forth in this prospectus. Only a registered holder of Private Notes may tender the Private Notes in the exchange offers. If you wish to tender
Private Notes that are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you should promptly instruct the registered holder to tender on your behalf.
We will determine in our sole discretion all questions as to the validity, form, eligibility, including time of receipt, and acceptance of
Private Notes tendered for exchange. We reserve the absolute right to reject any and all tenders of Private Notes not properly tendered or Private Notes our acceptance of which might, in the judgment of our counsel, be unlawful. We also reserve the
absolute right to waive any defects, irregularities or conditions of tender as to any particular Private Notes. However, to the extent we waive any conditions of tender with respect to one tender of Private Notes, we will waive that condition for
all tenders of Private Notes. Our interpretation of the terms and conditions of the exchange offers will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Private Notes must be cured
within the time period we determine. Neither we, the exchange agent nor any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give you notification of defects
or irregularities with respect to tenders of your Private Notes.
Tenders of Private Notes involving any irregularities will not be deemed
to have been made until such irregularities have been cured or waived. Private Notes received by the exchange agent in connection with the exchange offers that are not validly tendered and as to which the irregularities have not been cured within
the time
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period we determine or waived will be returned by the exchange agent to the DTC participant who delivered such Private Notes by crediting an account maintained at DTC designated by such DTC
participant promptly after the expiration date of the exchange offers or the withdrawal or termination of the exchange offers.
In
addition, we reserve the right in our sole discretion to purchase or make offers for any Private Notes that remain outstanding after the expiration date or, as set forth under Conditions to the Exchange Offers, to terminate the
exchange offers and, to the extent permitted by applicable law, purchase Private Notes in the open market, in privately negotiated transactions or otherwise. The terms of any of these purchases or offers could differ from the terms of the exchange
offers.
By tendering Private Notes in the exchange offers, you represent to us that, among other things:
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you, or the person or entity acquiring Exchange Notes, are acquiring the Exchange Notes in the ordinary course of business;
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neither you nor any person or entity receiving the related Exchange Notes is engaging in or intends to engage in a distribution of the Exchange Notes within the meaning of the federal securities laws;
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neither you nor any person or entity receiving the related Exchange Notes has an arrangement or understanding with any person or entity to participate in any distribution of the Exchange Notes;
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neither you nor any person or entity receiving the related Exchange Notes is an affiliate of Amgen Inc., as that term is defined under Rule 405 of the Securities Act; and
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you are not acting on behalf of any person or entity who could not truthfully make these statements.
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Withdrawal Rights
You may withdraw your
tender of Private Notes at any time before the exchange offers expire.
For a withdrawal to be effective, the holder must cause to be
transmitted to the exchange agent an agents message, which agents message must be received by the exchange agent prior to 5:00 p.m., New York City time, on the expiration date. In addition, the exchange agent must receive a timely
confirmation of book-entry transfer of the Private Notes out of the exchange agents account at DTC under the procedure for book-entry transfers described herein along with a properly transmitted agents message on or before the expiration
date.
We will determine in our sole discretion all questions as to the validity, form and eligibility, including time of receipt, of
notices of withdrawal. Our determination will be final and binding on all parties. Any Private Notes so withdrawn will be deemed not to have been validly tendered for purposes of the exchange offers. The Private Notes will be credited to an account
maintained with DTC for the Private Notes. You may re-tender properly withdrawn Private Notes by following one of the procedures described under Procedures for Tendering at any time on or before the expiration date.
Conditions to the Exchange Offers
Notwithstanding any other provision of the exchange offers, we are not required to accept for exchange, or to issue Exchange Notes in exchange
for, any Private Notes and may terminate or amend the exchange offers if, at any time before the acceptance of those Private Notes for exchange or the exchange of the Exchange Notes for those Private Notes, we determine that the exchange offers
violate applicable law, any applicable interpretation of the staff of the SEC or any order of any governmental agency or court of competent jurisdiction.
The foregoing conditions are for our sole benefit and may be asserted by us regardless of the circumstances giving rise to any of these
conditions or may be waived by us in whole or in part at any time and from time to time in our sole discretion. Our failure to exercise any of the foregoing rights at any time is not a waiver of any of these rights and each of these rights will be
an ongoing right which may be asserted at any time and from time to time.
If we determine that any of these conditions are not satisfied,
we may:
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refuse to accept any Private Notes and return all tendered Private Notes to you;
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extend the exchange offers and retain all Private Notes tendered before the exchange offers expire, subject, however, to your rights to withdraw the Private Notes; or
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waive the unsatisfied conditions with respect to the exchange offers and accept all properly tendered Private Notes that have not been withdrawn.
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If the waiver constitutes a material change to the exchange offers, we will promptly disclose the
waiver by means of a prospectus supplement that we will distribute to the registered holders of the Private Notes, and we will extend the exchange offers for a period of five to ten business days, depending upon the significance of the waiver and
the manner of disclosure to the registered holders, if the exchange offers would otherwise expire during the five to ten business day period.
In addition, we will not accept for exchange any Private Notes tendered, and no Exchange Notes will be issued in exchange for those Private
Notes, if at the time any stop order is threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the indenture under the Trust Indenture Act of 1939, as amended, or the
TIA. In any of those events, we will use every reasonable effort to obtain the withdrawal of any stop order at the earliest possible time.
Fees and
Expenses
We will not make any payments to brokers, dealers or others soliciting acceptances of the exchange offers. The principal
solicitation is being made by mail. However, additional solicitations may be made by facsimile transmission, telephone or in person by our officers and other employees of Amgen. We will pay the estimated cash expenses to be incurred in connection
with the exchange offers, which include fees and expenses of the exchange agent, accounting, legal, printing and related fees and expenses.
Transfer
Taxes
Holders who tender their Private Notes for exchange will not be obligated to pay any transfer taxes in connection with that
tender or exchange, except that holders who instruct us to register Exchange Notes in the name of, or request that Private Notes not tendered or not accepted in the exchange offers be returned to, a person other than the registered tendering holder
will be responsible for the payment of any applicable transfer tax on those Private Notes.
Accounting Treatment
For accounting purposes, we will not recognize any gain or loss upon the exchange of the Exchange Notes for Private Notes. We will expense
costs incurred in connection with the issuance of the Exchange Notes.
Consequence of Failures to Exchange
Participation in the exchange offers is voluntary. We urge you to consult your financial and tax advisors in making your decisions on what
action to take. Private Notes that are not exchanged for Exchange Notes pursuant to the exchange offers will remain restricted securities. Accordingly, those Private Notes may be resold only:
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to a person whom the seller reasonably believes is a qualified institutional buyer in a transaction meeting the requirements of Rule 144A;
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in a transaction meeting the requirements of Rule 144 under the Securities Act;
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outside the United States to a foreign person in a transaction meeting the requirements of Rule 904 of Regulation S under the Securities Act;
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in accordance with another exemption from the registration requirements of the Securities Act and based upon an opinion of counsel if we so request;
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pursuant to an effective registration statement.
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In each case, the Private Notes may be
resold only in accordance with any applicable securities laws of any state of the United States or any other applicable jurisdiction.
Exchange Agent
You should direct any questions and requests for assistance and requests for additional copies of this prospectus to the exchange
agent addressed as follows:
The Bank of New York Mellon Trust Company, N.A.
111 Sanders Creek Parkway
East
Syracuse, NY 13057
Attention: Pamela Adamo Corporate Trust - Reorg
Telephone: (315) 414-3317
Facsimile: (732) 667-9408
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DESCRIPTION OF NOTES
On June 14, 2016, we issued the unregistered 4.563% Senior Notes due 2048 and the unregistered 4.663% Senior Notes due 2051 (referred to
herein, respectively, as the 2048 Private Notes and the 2051 Private Notes and, collectively, as the Private Notes) in a private offering exempt from the registration requirements of the Securities Act of 1933, as
amended (the Securities Act). The Private Notes were issued pursuant to an Indenture, dated as of May 22, 2014 (the Indenture), between us and The Bank of New York Mellon Trust Company, N.A., as trustee (the
trustee), and an officers certificate, dated as of June 14, 2016 (the officers certificate). The Indenture and the officers certificate will also govern the terms and conditions relating to the registered
4.563% Senior Notes due 2048 and the registered 4.663% Senior Notes due 2051 (referred to herein, respectively, as the 2048 Exchange Notes and the 2051 Exchange Notes and, collectively, as the Exchange Notes) to
be issued in the exchange offers for the same series of corresponding Private Notes described in this prospectus. Each series of Exchange Notes, when issued, will be part of the same series of corresponding Private Notes under the Indenture.
References in this Description of Notes to: (i) the 2048 Notes include the Private 2048 Notes and the 2048 Exchange Notes; (ii) the 2051 Notes include the Private 2051 Notes and
the 2051 Exchange Notes; and (iii) the Notes include the Private Notes and the Exchange Notes. Each series of Exchange Notes offered hereby and the same series of corresponding Private Notes not tendered pursuant to the terms
hereof will be treated as a single class under the Indenture, including for purposes of determining whether the required percentage of holders have given approval or consent to an amendment or waiver or joined in directing the trustee to take
certain actions on behalf of all holders.
Each of the 2048 Notes and the 2051 Notes will be a separate series of notes under the
Indenture. We may issue additional notes under the Indenture. We have issued and may issue notes of other series under the Indenture.
The
following summary of certain provisions of the Indenture, the officers certificate and the Notes does not purport to be complete and is subject to, and qualified in its entirety by reference to, all the provisions of the Indenture, the
officers certificate and the Notes, including the definitions therein of certain terms. Because the following is only a summary, it does not contain all of the information that you may find useful in evaluating an investment in the Notes. We
urge you to read the Indenture, officers certificate and the Notes because they, and not this description, define your rights as holders of the Notes. You may obtain a copy of the Indenture and the officers certificate (which includes
forms of the Notes) from us upon request, as set forth under Where You Can Find Additional Information; Incorporation by Reference in this prospectus.
As used in this discussion under the heading Description of Notes, unless otherwise specified, the terms Amgen
we, our, and us refer solely to Amgen Inc. and not its subsidiaries.
The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the TIA).
General
The:
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Notes will be our senior unsecured obligations and will rank equal in right of payment to all of our other unsecured senior indebtedness, whether currently existing or hereafter created; and
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2048 Notes will mature on June 15, 2048 and the 2051 Notes will mature on June 15, 2051.
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We may, without notice to or the consent of the holders or beneficial owners of the Notes of any series, create and issue additional Notes
and/or notes having the same ranking, interest rate, maturity and other terms as the notes of that series. Any additional debt securities having such similar terms, together with that series of notes, could be considered part of the same series of
notes under the Indenture.
The Notes are redeemable prior to maturity as described below under the heading Optional
Redemption. The Notes do not have the benefit of any sinking funds. The Notes of each series will be issued only in registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Each
series of Notes will be represented by one or more global securities registered in the name of a nominee of The Depository Trust Company, New York, New York, which we refer to as DTC. See Book-Entry, Delivery and Form.
Payments on the Notes will be made through the paying agent, which will initially be the trustee, to DTC. Payments on the Notes will be made
in U.S. dollars at the office or agency maintained by us in the Borough of Manhattan, The City of New York (or, if we fail to maintain such office or agency, at the corporate trust office of the trustee in New York, New York or if the trustee does
not maintain an office in New York, at the office of a paying agent in New York). At our option, however, if certificated notes (as defined below) are issued, we may make payments by check mailed to the holders registered address or by wire
transfer to the account designated in writing to the trustee. You may present the Notes for registration of transfer and exchange, without service charge (but we may require a sum sufficient to cover any tax or other governmental charge in
connection with such transfer or exchange), at the office or agency maintained by us in New York, New York (or, if we fail to maintain such office or agency, at the corporate trust office of the trustee in New York, New York or if the trustee does
not maintain an office in New York, at the office of a paying agent in New York). The transfer of certificated notes will be registrable, and Notes will be exchangeable for notes of other denominations of an equal aggregate principal amount, at such
office or agency.
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Interest
The 2048 Notes will accrue interest at a rate of 4.563% per annum and the 2051 Notes will accrue interest at a rate of 4.663% per
annum.
The Notes will accrue interest on their stated principal amounts from June 14, 2016, or, in each case, from the most recent
interest payment date on which interest has been paid or duly provided for. Accrued and unpaid interest on the Notes will be payable in cash semi-annually in arrears on June 15 and December 15 of each year, commencing on December 15,
2016. In each case, interest will be paid to the holder in whose name a Note is registered at the close of business on the day that is 15 days prior to the relevant interest payment date, whether or not such day is a Business Day.
The amount of interest payable for any full semi-annual interest period will be computed on the basis of a 360-day year of twelve 30-day
months. The amount of interest payable for any period shorter than a full semi-annual interest period for which interest is computed, will be computed on the basis of 30-day months and, for periods of less than a month, the actual number of days
elapsed per 30-day month. If any date on which interest, principal or premium is payable on the Notes is not a Business Day, then payment of such amounts payable on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) with the same force and effect as if made on such interest payment date or maturity date, as the case may be.
Any amounts payable on any Notes that are not punctually paid on any payment date will cease to be payable to the person in whose name such
Notes are registered on the relevant record date, and such defaulted payment will instead be payable to the person in whose name such Notes are registered on the special record date or other specified date determined in accordance with the
Indenture.
Ranking
The Notes will
be senior unsecured obligations of Amgen. The Notes will rank:
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equal in right of payment to all of our other existing and future senior unsecured indebtedness, including indebtedness under our revolving credit agreement, our 2.50% Senior Notes due November 2016, our floating rate
Senior Notes due May 2017, our 1.25% Senior Notes due May 2017, our 2.125% Senior Notes due May 2017, our 5.85% Senior Notes due June 2017, our 6.15% Senior Notes due June 2018, our 4.375% Senior Notes due December 2018 (euro denominated), our 5.70%
Senior Notes due February 2019, our floating rate Senior Notes due May 2019, our 2.20% Senior Notes due May 2019, our 2.125% Senior Notes due September 2019 (euro denominated), our 4.50% Senior Notes due March 2020, our 2.125% Senior Notes due May
2020, our 3.45% Senior Notes due October 2020, our 4.10% Senior Notes due June 2021, our 1.85% Senior Notes due August 2021, our 3.875% Senior Notes due November 2021, our 1.25% Senior Notes due February 2022 (euro denominated), our 3.625% Senior
Notes due May 2022, our 2.70% Senior Notes due May 2022, our 0.41% bonds due March 2023 (Swiss franc denominated), our 2.25% Senior Notes due August 2023, our 3.625% Senior Notes due May 2024, our 3.125% Senior Notes due May 2025, our 2.00% Senior
Notes due February 2026 (euro denominated), our 2.60% Senior Notes due August 2026, our 5.50% Senior Notes due December 2026 (pound sterling denominated), our 4.00% Senior Notes due September 2029 (pound sterling denominated), our 6.375% Senior
Notes due June 2037, our 6.90% Senior Notes due June 2038, our 6.40% Senior Notes due February 2039, our 5.75% Senior Notes due March 2040, our 4.95% Senior Notes due October 2041, our 5.15% Senior Notes due November 2041, our 5.65% Senior Notes due
June 2042, our 5.375% Senior Notes due May 2043 and our 4.400% Senior Notes due May 2045;
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senior in right of payment to all of our existing and future subordinated indebtedness; and
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effectively subordinated in right of payment to all of our subsidiaries obligations (including secured and unsecured obligations) and effectively subordinated in right of payment to our secured obligations, to the
extent of the assets securing such obligations.
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The Notes and the Indenture do not limit our ability to incur additional
indebtedness. We may incur substantial additional amounts of indebtedness in the future.
Optional Redemption
The 2048 Notes may be redeemed prior to maturity at our option, at any time in whole or from time to time in part. If the 2048 Notes are
redeemed before December 15, 2047 (six months prior to the maturity date of the 2048 Notes), the redemption price will equal the sum of (1) 100% of the principal
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amount being redeemed, plus accrued and unpaid interest to, but not including, the redemption date, and (2) the Make-Whole Amount (as defined below), if any. If the 2048 Notes are redeemed
on or after December 15, 2047 (six months prior to the maturity date of the 2048 Notes), the redemption price will equal 100% of the principal amount being redeemed, plus accrued and unpaid interest to, but not including, the redemption date.
The 2051 Notes may be redeemed prior to maturity at our option, at any time in whole or from time to time in part. If the 2051 Notes are
redeemed before December 15, 2050 (six months prior to the maturity date of the 2051 Notes), the redemption price will equal the sum of (1) 100% of the principal amount being redeemed, plus accrued and unpaid interest to, but not
including, the redemption date, and (2) the Make-Whole Amount (as defined below), if any. If the 2051 Notes are redeemed on or after December 15, 2050 (six months prior to the maturity date of the 2051 Notes), the redemption price will
equal 100% of the principal amount being redeemed, plus accrued and unpaid interest to, but not including, the redemption date.
If less
than all the Notes of a series are to be redeemed, the Notes of such series to be redeemed will be selected as follows: (a) if the Notes are in the form of global securities, in accordance with the procedures of the applicable depositary;
(b) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed; or (c) if not otherwise provided for under clause
(a) or (b) in the manner that the trustee deems fair and appropriate, including by lot or other method, unless otherwise required by law or applicable stock exchange requirements, subject, in the case of global securities, to the
applicable rules and procedures of the applicable depositary. The Notes to be redeemed shall be selected from Notes of that series not previously called for redemption. Portions of the principal amount of the Notes of that series that have
denominations larger than $2,000 may be selected for redemption. Notes of that series and portions of them selected for redemption shall be in amounts of $2,000 or whole multiples of $1,000. Provisions of the Indenture that apply to Notes called for
redemption also apply to portions of those Notes called for redemption.
If we give notice as provided in the Indenture and funds for the
redemption of any Notes called for redemption sufficient to pay the redemption price have been deposited with the paying agent on or before 11:00 a.m., New York time, on the redemption date, such Notes will cease to bear interest on the date fixed
for redemption. Thereafter, the only right of the holders of such Notes will be to receive payment of the redemption price.
Upon
surrender of a Note that is redeemed in part, we shall execute and the trustee shall authenticate for the holder a new Note of the same series and the same maturity equal in principal amount to the unredeemed portion of the Notes surrendered.
We will give notice of any optional redemption to the registered holders of Notes at least 15 but not more than 60 days before a
redemption date. The notice shall identify the Notes to be redeemed and shall state:
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the name and address of the paying agent;
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if any Notes are being redeemed in part, the portion of the principal amount of such Notes to be redeemed and that, after the redemption date and upon surrender of such Notes, a new Note or Notes in principal amount
equal to the unredeemed portion of the original Note shall be issued in the name of the holder of the Notes thereof upon cancellation of the original Note;
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that the Notes called for redemption must be surrendered to the paying agent to collect the redemption price;
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that interest on the Notes called for redemption ceases to accrue on and after the redemption date unless we default in the deposit of the redemption price; and
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the CUSIP number of the Notes.
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At our request, the trustee shall give the notice of redemption in our name and at our expense.
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, we will be required to make an offer (the 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 that holders Notes on the terms set forth in such Notes. In the 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 the date of repurchase (the change of control payment). Within 30 days following any change of control triggering event, a
notice will be provided to holders of the Notes describing the transaction that constitutes the change of control triggering event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days
and no later than 60 days from the date such notice is provided (the change of control payment date)
On the 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 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; 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 repurchase any Notes if there has occurred and is continuing on the change of control payment date an event of
default under the Indenture, other than a default in the payment of the change of control payment upon a change of control triggering event.
We will 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 such securities laws or regulations conflict with the
change of control offer provisions of the Notes, we will comply with those 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.
For purposes of the change of control offer provisions of the Notes, the following terms will be applicable:
Beneficial owner
shall be determined in accordance with Rules 13d-3 and 13d-5 under the Exchange Act or any successor
provisions, except that a person will be deemed to have beneficial ownership of all shares that person has the right to acquire irrespective of whether that right is exercisable immediately or only after the passage of time.
Change of control
means the occurrence of any of the following: (1) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that any person or group (other than our company or one of our Subsidiaries) becomes the beneficial owner, directly or indirectly, of more than 50% of our voting stock or other
voting stock into which our voting stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; provided, however, that a person shall not be deemed beneficial owner of, or to own beneficially,
(A) any securities tendered pursuant to a tender or
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exchange offers 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 (B) any
securities if such beneficial ownership (i) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act, and (ii) is
not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act; (2) the direct or indirect sale, 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 the assets of our Subsidiaries, taken as a whole, to one or more persons or groups (other than our company or one of our Subsidiaries), provided that none of the circumstances in
this clause (2) will be a change of control if the persons that beneficially own our voting stock immediately prior to the transaction own, directly or indirectly, shares with a majority of the total voting power of all outstanding voting
securities of the surviving or transferee person that are entitled to vote generally in the election of that persons board of directors, managers or trustees immediately after the transaction; (3) 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 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; or (4) the adoption of a plan relating to our liquidation or dissolution. Notwithstanding the foregoing, a transaction
will not be deemed to involve a change of control under clause (1) above if (i) we become a direct or indirect wholly-owned Subsidiary of a holding company and (ii) (A) the direct or indirect holders of the voting stock of such
holding company immediately following that transaction are substantially the same as the holders of our voting stock immediately prior to that transaction or (B) immediately following that transaction no person (other than a holding company
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.
Change of control triggering event
means the occurrence of both a change of control and a rating event.
Group
has the meaning given by Section 13(d) and 14(d) of the Exchange Act or any successor provisions and includes
any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision.
Investment grade rating
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 additional rating agency or rating agencies selected by us.
Moodys
means Moodys Investors Service, Inc., and its successors.
Person
has the meaning given by Section 13(d) and 14(d) of the Exchange Act or any successor provisions.
Rating agencies
means (1) each of Moodys and S&P; and (2) if 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 within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by
us (as certified by a resolution of our 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 applicable series of Notes is lowered by both of the rating agencies and the Notes are
rated below an investment grade rating by both of the rating agencies on any day during the period commencing 60 days prior to the first public notice of the occurrence of a change of control or our intention to effect a change of control and ending
60 days following consummation of such change of control (which period will be extended so long as the rating of the applicable series of Notes is under publicly announced consideration for a possible downgrade by any of the rating agencies).
S&P
means Standard & Poors Rating Services, a division of The McGraw-Hill Companies, Inc., and its
successors.
Voting stock
as applied to stock of any person, means shares, interests, participations or other
equivalents in the equity interest (however designated) in such person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such person, other than shares, interests, participations or other equivalents
having such power only by reason of the occurrence of a contingency.
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Certain Covenants
Limitation on Liens
We will not,
nor will we permit any of our Subsidiaries to, create or incur any Lien on any of our or their respective Properties, whether now owned or hereafter acquired, or upon any income or profits therefrom, in order to secure any of our Indebtedness,
without effectively providing that each series of Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:
(1) Liens existing as of the first issue date of the Notes;
(2) Liens granted after the first issue date of the Notes on any of our or our Subsidiaries Properties securing our Indebtedness created
in favor of the holders of the Notes;
(3) Liens securing our Indebtedness which are incurred to extend, renew or refinance Indebtedness
which is secured by Liens permitted to be incurred under the Indenture; provided that those Liens do not extend to or cover any of our or our Subsidiaries Property other than the Property securing the Indebtedness being refinanced and that the
principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced;
(4) Liens created in
substitution of or as replacements for any Liens permitted by the clauses directly above, provided that, based on a good faith determination of one of our officers, the Property encumbered under any such substitute or replacement Lien is
substantially similar in nature to the Property encumbered by the otherwise permitted Lien which is being replaced; and
(5) Permitted
Liens.
Notwithstanding the foregoing, we and any of our Subsidiaries may, without securing any series of Notes, create or incur Liens
which would otherwise be subject to the restrictions set forth in the preceding paragraph, if after giving effect thereto, Exempted Debt does not exceed the greater of (a) 35% of Consolidated Net Worth calculated as of the date of the creation
or incurrence of the Lien or (b) 35% of Consolidated Net Worth calculated as of the first issue date of the Notes.
Limitation on Sale and
Lease-Back Transactions
We will not, nor will we permit any of our Subsidiaries to, enter into any sale and lease-back transaction
for the sale and leasing back of any Property, whether now owned or hereafter acquired, of ours or any of our Subsidiaries, unless:
(1)
such transaction was entered into prior to the first issue date of the Notes;
(2) such transaction was for the sale and leasing back to
us of any Property by one of our Subsidiaries;
(3) such transaction involves a lease for less than three years;
(4) we would be entitled to incur Indebtedness secured by a mortgage on the Property to be leased in an amount equal to the Attributable Liens
with respect to such sale and lease-back transaction without equally and ratably securing the Notes pursuant to the first paragraph of Limitation on Liens above; or
(5) we apply an amount equal to the fair value of the Property sold to the purchase of Property or to the retirement of our or any of our
Subsidiaries long-term Indebtedness within 120 days of the effective date of any such sale and lease-back transaction. In lieu of applying such amount to such retirement, we may, or may cause any of our Subsidiaries to, deliver debt securities
to the trustee therefor for cancellation, such debt securities to be credited at the cost thereof to us.
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Notwithstanding the foregoing, we and any of our Subsidiaries may enter into any sale lease-back
transaction which would otherwise be subject to the foregoing restrictions if after giving effect thereto and at the time of determination, Exempted Debt does not exceed the greater of (a) 35% of Consolidated Net Worth calculated as of the
closing date of the sale-leaseback transaction or (b) 35% of Consolidated Net Worth calculated as of the first issue date of the Notes.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to, any
person, which we refer to as a successor person, unless:
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we are the surviving corporation or the successor person (if other than Amgen) is organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the Notes and
under the Indenture; and
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immediately after giving effect to the transaction, no default or event of default shall have occurred and be continuing.
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Notwithstanding the above, any of our Subsidiaries may consolidate with, merge into or transfer all or part of its properties to us.
Certain Definitions
As used in this
section, the following terms have the meanings set forth below.
Attributable Liens
means in connection with a sale and
lease-back transaction the lesser of:
(1) the fair market value of the assets subject to such transaction; and
(2) the present value (discounted at a rate per annum equal to the average interest borne by all outstanding debt securities issued under the
Indenture (which may include debt securities in addition to the Notes) determined on a weighted average basis and compounded semi-annually) of the obligations of the lessee for rental payments during the term of the related lease.
Business Day
means any day except a Saturday, Sunday or a legal holiday in the City of New York, New York (or in connection
with any payment, the place of payment) on which banking institutions are authorized or required by law, regulation or executive order to close.
Capital Lease
means any Indebtedness represented by a lease obligation of a Person incurred with respect to real property
or equipment acquired or leased by such Person and used in its business that is required to be recorded as a capital lease in accordance with GAAP.
Consolidated Net Worth
means, as of any date of determination, the Stockholders Equity of us and our Consolidated
Subsidiaries on that date.
Consolidated Subsidiary
means, as of any date of determination and with respect to any
Person, any Subsidiary of that Person whose financial data is, in accordance with GAAP, reflected in that Persons consolidated financial statements.
Credit Facilities
means, one or more debt facilities (including, without limitation, the Revolving Credit Agreement and the
Term Loan Credit Agreement) or commercial paper facilities, in each case, with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or
to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced
(including by means of sales of debt securities to institutional investors) in whole or in part from time to time.
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Exempted Debt
means the sum of the following as of the date of determination:
(1) our Indebtedness incurred after the first issue date of the Notes and secured by Liens not permitted by the first sentence under
Limitation on Liens above; and
(2) our and our Subsidiaries Attributable Liens in respect of sale and lease-back
transactions entered into after the first issue date of the Notes pursuant to the second paragraph of Limitation on Sale and Lease-Back Transactions above.
GAAP
means accounting principles generally accepted in the United States set forth in the Accounting Standards Codification
of the Financial Accounting Standards Board or in such other documents by such other entity as have been approved by a significant segment of the accounting profession, which are in effect as of the date of determination.
Governmental Agency
means:
(1) any foreign, federal, state, county or municipal government, or political subdivision thereof;
(2) any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality or public body;
(3) any court or administrative tribunal; and
(4) with respect to any Person, any arbitration tribunal or other nongovernmental authority to whose jurisdiction that Person has consented.
Hedging Obligations
means, with respect to any specified Person, the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate
collar agreements;
(2) other agreements or arrangements designed to manage interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.
Indebtedness
of any Person means, without duplication, any indebtedness, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements with respect thereto) or representing the balance deferred and unpaid of the purchase price of any Property (including pursuant
to Capital Leases), except any such balance that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing indebtedness would appear as a liability upon a balance sheet of such Person prepared on a consolidated basis
in accordance with GAAP (but does not include contingent liabilities which appear only in a footnote to a balance sheet), and shall also include, to the extent not otherwise included, the guaranty of items which would be included within this
definition.
Laws
means, collectively, all foreign, federal, state and local statutes, treaties, rules, regulations,
ordinances, codes and administrative or controlling precedents of any Governmental Agency.
Lien
means any lien,
security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest).
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Make-Whole Amount
means the excess of (1) the net present value, on the
redemption date, of the principal being redeemed or paid and the amount of interest (exclusive of interest accrued to the date of redemption) that would have been payable if such redemption had not been made, over (2) the aggregate principal
amount of the series of Notes being redeemed or paid. Net present value shall be determined by discounting, on a semi-annual basis, such principal and interest at the Reinvestment Rate (as defined below and as determined on the third Business Day
preceding the date such notice of redemption is given) from the respective dates on which such principal and interest would have been payable if such redemption had not been made.
Permitted Liens
means:
(1) Liens securing Indebtedness under Credit Facilities;
(2) Liens on accounts receivable, merchandise inventory, equipment, and patents, trademarks, trade names and other intangibles, securing our
Indebtedness;
(3) Liens on any of our assets, any of our Subsidiaries assets, or the assets of any joint venture to which we or any
of our Subsidiaries is a party, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 24 months after completion of such refurbishment,
improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(4) (a) Liens
given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of Property (including shares of stock), including Capital Lease transactions in connection with
any such acquisition, and (b) Liens existing on Property at the time of acquisition thereof or at the time of acquisition by us or one of our Subsidiaries of any Person then owning such Property whether or not such existing Liens were given to
secure the payment of the purchase price of the Property to which they attach; provided that, with respect to clause (a), the Liens shall be given within 24 months after such acquisition and shall attach solely to the Property acquired or purchased
and any improvements then or thereafter placed thereon;
(5) Liens in favor of customs and revenue authorities arising as a matter of law
to secure payment of customs duties in connection with the importation of goods;
(6) Liens upon specific items of inventory or other
goods and proceeds of any Person securing such Persons obligations in respect of bankers acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(7) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other Property relating to such
letters of credit and the products and proceeds thereof;
(8) Liens on key-man life insurance policies granted to secure our Indebtedness
against the cash surrender value thereof;
(9) Liens encumbering customary initial deposits and margin deposits and other Liens in the
ordinary course of business, in each case securing Hedging Obligations and forward contract, option, futures contracts, futures options or similar agreements or arrangements designed to protect us or any of our Subsidiaries from fluctuations in
interest rates, currencies or the price of commodities;
(10) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by us or any of our Subsidiaries in the ordinary course of business;
(11)
pre-existing Liens on assets acquired by us or any of our Subsidiaries after the first issue date of the Notes;
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(12) Liens in our favor or the favor of any of our Subsidiaries;
(13) inchoate Liens incident to construction or maintenance of real property, or Liens incident to construction or maintenance of real
property, now or hereafter filed of record for sums not yet delinquent or being contested in good faith, if reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made therefor;
(14) statutory Liens arising in the ordinary course of business with respect to obligations which are not delinquent or are being contested in
good faith, if reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made therefor;
(15) Liens
consisting of pledges or deposits to secure obligations under workers compensation laws or similar legislation, including Liens of judgments thereunder which are not currently dischargeable;
(16) Liens consisting of pledges or deposits of Property to secure performance in connection with operating leases made in the ordinary course
of business to which we or any of our Subsidiaries is a party as lessee, provided the aggregate value of all such pledges and deposits in connection with any such lease does not at any time exceed 16 2/3% of the annual fixed rentals payable under
such lease;
(17) Liens consisting of deposits of Property to secure our statutory obligations or statutory obligations of any of our
Subsidiaries in the ordinary course of its business;
(18) Liens consisting of deposits of Property to secure (or in lieu of) surety,
appeal or customs bonds in proceedings to which we or any of our Subsidiaries is a party in the ordinary course of its business, but not in excess of $75,000,000;
(19) purchase money Liens or purchase money security interests upon or in any Property acquired or held by us or any of our Subsidiaries in
the ordinary course of business to secure the purchase price of such Property or to secure indebtedness incurred solely for the purpose of financing the acquisition of such Property;
(20) Liens on an asset created in connection with the acquisition, construction or development of additions, extensions or improvements to
such asset which shall be financed by obligations described in Sections 142, 144(a) or 144(c) of the Internal Revenue Code of 1986, as amended, or by obligations entitled to substantially similar tax benefits under other legislation or regulations
in effect from time to time; and
(21) Liens on Property subject to escrow or similar arrangements established in connection with
litigation settlements.
Person
means any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Property
means any property or asset, whether real, personal or mixed, or tangible or intangible.
Reinvestment Rate
means, for the 2048 Notes, 0.30%, and for the 2051 Notes, 0.30%, in each case plus the arithmetic mean of
the yields under the respective heading Week Ending published in the most recent Statistical Release (as defined below) under the caption Treasury Constant Maturities for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the principal being redeemed or paid. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity
shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used.
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Revolving Credit Agreement
means the Amended and Restated Credit Agreement,
dated as of July 30, 2014, among us, the banks therein named, Citibank, N.A., as administrative agent, JPMorgan Chase Bank, N.A., as syndication agent, and Citigroup Global Markets Inc., J.P. Morgan Securities LLC, Barclays Bank PLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley Senior Funding, Inc. and Goldman Sachs Bank USA, as joint lead arrangers and joint book runners, as such agreement may be amended (including any amendment, restatement, refinancing
and successors thereof), supplemented or otherwise modified from time to time, including any increase in the principal amount of the obligations thereunder.
Statistical Release
means the statistical release designated H.15(519) or any successor publication which is
published weekly by the Federal Reserve System and which establishes yields on actively traded U.S. government securities adjusted to constant maturities, or, if such Statistical Release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated by us.
Stockholders Equity
means, as of any date of determination, stockholders equity as of that date determined in accordance with GAAP; provided that there shall be excluded from Stockholders Equity any amount attributable to capital stock that is, directly or
indirectly, required to be redeemed or repurchased by the issuer thereof at a specified date or upon the occurrence of specified events or at the election of the holder thereof.
Subsidiary
of any specified person means any corporation, association or other business entity of which more than 50% of
the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such
person or one or more of the other Subsidiaries of that person or a combination thereof.
Term Loan Credit Agreement
means the Term Loan Facility Credit Agreement, dated as of September 20, 2013, among us, the banks therein named, Bank of America, N.A., as administrative agent, and Barclays Bank PLC and JPMorgan Chase Bank, N.A., as syndication agents, as
such agreement may be amended (including any amendment, restatement, refinancing and successors thereof), supplemented or otherwise modified from time to time, including any increase in the principal amount of the obligations thereunder.
Events of Default
Event of default
means, with respect to each series of Notes, any of the following:
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default in the payment of any interest on the Notes of that series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us
with the trustee or with a paying agent prior to the expiration of the 30-day period);
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default in the payment of principal of the Notes of that series at their maturity;
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default in the performance or breach of any other covenant or warranty by us in the Indenture (other than defaults pursuant to the previous two bullet points above or pursuant to a covenant or warranty that has been
included in the Indenture solely for the benefit of a series of debt securities other than that series of Notes), which default continues uncured for a period of 90 days after we receive written notice from the trustee or we and the trustee receive
written notice from the holders of not less than a majority in principal amount of the outstanding Notes of the affected series as provided in the Indenture; or
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certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of our company.
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No event of default with respect to the Notes (except as to certain events of bankruptcy, insolvency or reorganization) necessarily
constitutes an event of default with respect to any other series of debt
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securities. The occurrence of an event of default may constitute an event of default under our bank credit agreements in existence from time to time. In addition, the occurrence of certain events
of default or an acceleration under the Indenture may constitute an event of default under certain of our other indebtedness outstanding from time to time.
We will provide the trustee written notice of any default or event of default within 30 days of becoming aware of the occurrence of such
default or event of default, which notice will describe in reasonable detail the status of such default or event of default and what action we are taking or propose to take in respect thereof.
If an event of default with respect to a series of Notes occurs and is continuing (other than an event of default regarding certain events of
bankruptcy, insolvency or reorganization of our company), then the trustee or the holders of not less than a majority in principal amount of the outstanding Notes of that series may, by a notice in writing to us (and to the trustee if given by the
holders), declare to be due and payable immediately the principal of, and accrued and unpaid interest, if any, on all Notes of that series. In the case of an event of default resulting from certain events of bankruptcy, insolvency or reorganization,
the principal of and accrued and unpaid interest, if any, on all outstanding debt securities issued under the Indenture will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of
outstanding debt securities, including the Notes. At any time after a declaration of acceleration with respect to a series of Notes has been made, and before a judgment or decree for payment of the money due has been obtained by the trustee, the
holders of a majority in principal amount of the outstanding Notes of that series may, by written notice to us and the trustee, rescind and annul such acceleration if all events of default, other than the non-payment of accelerated principal and
interest, if any, with respect to the Notes of that series, have been cured or waived as provided in the Indenture.
The Indenture
provides that the trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any holder of Notes, unless the trustee receives indemnity satisfactory to it against any cost, liability or expense
which might be incurred by it in exercising such right or power. Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding Notes of the affected series will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the Notes of that series.
No holder of any Note of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or
for the appointment of a receiver or trustee, or for any remedy under the Indenture unless, among other things:
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that holder has previously given to the trustee written notice of a continuing event of default with respect to the Notes of that series; and
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the holders of at least a majority in principal amount of the outstanding Notes of that series have made written request, and offered reasonable indemnity or security, to the trustee to institute the proceeding as
trustee, and the trustee has not received from the holders of a majority in principal amount of the outstanding Notes of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days.
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Notwithstanding any other provision in the Indenture, the holder of any Notes will have an absolute and unconditional right
to receive payment of the principal of, premium and any interest on that Note on or after the due dates expressed in that Note and to institute suit for the enforcement of any such payment.
If any securities are outstanding under the Indenture, the Indenture requires us, within 120 days after the end of each fiscal year, to
furnish to the trustee a statement as to our compliance with the Indenture. If a default or event of default occurs and is continuing with respect to Notes of any series and if it is known to a responsible officer of the trustee, the trustee shall
deliver to each holder of the Notes of that series notice of a default or event of default within 90 days after it occurs. The Indenture provides that the trustee may withhold notice to the holders of the Notes of any default or event of default
(except in the case of a default or event of default in payment of principal of or interest on any Note of that series) with respect to Notes of that series if it in good faith determines that withholding notice is in the interest of the holders of
those Notes.
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Modification and Waiver
We and the trustee may modify and amend the Indenture or Notes of any series without the consent of any holder of such series of Notes:
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to cure any ambiguity, defect or inconsistency;
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to comply with the covenant described above under the heading Consolidation, Merger and Sale of Assets;
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to provide for uncertificated Notes in addition to or in place of certificated Notes;
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to add guarantees with respect to Notes of any series or secure Notes of any series;
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to surrender any of our rights or powers under the Indenture;
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to add covenants or events of default for the benefit of the holders of Notes of any series;
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to comply with the applicable procedures of the applicable depositary;
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to make any change that would not adversely affect the rights of any holder of Notes in any material respect;
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to provide for the issuance of and establish the form and terms and conditions of additional Notes of any series as permitted by the Indenture;
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to effect the appointment of a successor trustee with respect to the Notes and to add to or change any of the provisions of the Indenture to provide for or facilitate administration by more than one trustee; or
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to comply with requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA.
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We may also modify and amend the Indenture with the consent of the holders of at least a majority in principal amount of the outstanding Notes
of each series affected by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected Note then outstanding if that amendment will:
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reduce the amount of Notes of a series whose holders must consent to an amendment, supplement or waiver;
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reduce the rate of or extend the time for payment of interest (including any additional amounts) on the Notes;
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reduce the principal of or premium on or change the fixed maturity of the Notes;
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waive a default in the payment of the principal of, premium or interest on the Notes (except a rescission of acceleration of the Notes by the holders of at least a majority in aggregate principal amount of the then
outstanding Notes of that series and a waiver of the payment default that resulted from such acceleration);
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make the principal of or interest on the Notes payable in currency other than that stated in the Notes;
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make any change to certain provisions of the Indenture relating to, among other things, the right of holders of the Notes to receive payment of the principal of, premium and interest on the Notes and to institute suit
for the enforcement of any such payment and to waivers or amendments; or
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waive a redemption payment with respect to the Notes.
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Except for certain specified provisions, the holders of at least a majority in principal amount
of the outstanding Notes of the affected series may, on behalf of the holders of all the Notes of that series, waive our compliance with provisions of the Indenture. The holders of a majority in principal amount of the outstanding Notes of the
affected series may, on behalf of the holders of all the Notes of such series, waive any past default under the Indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or any interest
on any Note of that series; provided, however, that the holders of a majority in principal amount of the outstanding Notes of the affected series may rescind an acceleration and its consequences, including any related payment default that resulted
from such acceleration.
No amendment to cure any ambiguity, defect or inconsistency in the Indenture made solely to conform the Indenture
to the description of Notes contained in this prospectus will be deemed to adversely affect the interests of the holders of the Notes.
Defeasance and
Covenant Defeasance
Legal Defeasance
The Indenture provides that we may be discharged from any and all obligations in respect of the Notes (subject to certain exceptions). We will
be so discharged upon the deposit with the trustee, in trust, of money and/or U.S. government obligations that, through the payment of interest and principal in accordance with their terms, will provide an amount in cash sufficient in the opinion of
a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and interest on the Notes on the stated maturity of those payments in accordance with the terms of the
Indenture and the Notes.
This discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel
stating that we have received from, or there has been published by, the U.S. Internal Revenue Service a ruling or, since the date of execution of the Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to
U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants
The Indenture provides that upon compliance with certain conditions:
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we may omit to comply with the covenant described under the heading Consolidation, Merger and Sale of Assets and certain other covenants set forth in the Indenture, as well as any additional covenants
set forth in this prospectus; and
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any omission to comply with those covenants will not constitute a default or an event of default with respect to the Notes, which we refer to as a covenant defeasance.
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The conditions include:
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depositing with the trustee money and/or U.S. government obligations that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and interest on the Notes on the stated maturity of those payments in accordance with the terms of the
Indenture and the Notes; and
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delivering to the trustee an opinion of counsel to the effect that the holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and related covenant
defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred.
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Covenant Defeasance and Events of Default
In the event we exercise our option to effect covenant defeasance with respect to any series of the Notes and the Notes of that series are
declared due and payable because of the occurrence of any event of default, the amount of money and/or U.S. government obligations on deposit with the trustee will be sufficient to pay amounts due on the Notes of that series at the time of their
stated maturity but may not be sufficient to pay amounts due on the Notes of that series at the time of the acceleration resulting from the event of default. In such a case, we would remain liable for those payments.
Book-Entry; Delivery and Form
We have
obtained the information in this section concerning DTC, Clearstream and 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 as fully-registered global notes which will be deposited with, or on behalf of, DTC and registered, at the request of
DTC, in the name of Cede & Co. Notes held by Qualified Institutional Buyers will be evidenced by Rule 144A global notes. Other Notes held by non-U.S. persons will, subject to certain exceptions, be evidenced by Regulation S global notes.
Qualified Institutional Buyers may hold their interest in any of the Rule 144A global notes evidencing the Notes directly through DTC, or indirectly through organizations which are participants in DTC. Non-U.S. persons may hold their interest in any
of the Regulation S global notes through Clearstream or Euroclear as participants, or through organizations that are participants in Clearstream or Euroclear.
Beneficial interests in the global notes will be represented through book-entry accounts of financial institutions acting on behalf of
beneficial owners as direct or indirect participants in DTC. The direct and indirect participants will remain responsible for keeping account of their holdings on behalf of their customers. Investors may elect to hold their interests in the global
notes through either DTC (in the United States) or (in Europe) through Clearstream or through Euroclear. Investors may hold their interests in the global notes 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 (the U.S. Depositaries), which U.S.
Depositaries will, in turn, hold interests on behalf of their participants customers securities accounts. Beneficial interests in the global notes will be held in denominations of $2,000 and integral multiples of $1,000 in excess
thereof. Except as set forth below, the global notes 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 a global note can be exchanged for definitive notes 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 note and we do not appoint a qualified successor depositary within 90 days after receiving that notice;
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at any time DTC ceases to be a clearing agency registered under the Exchange Act and we do not appoint a successor depositary within 90 days after becoming aware that DTC has ceased to be registered as a clearing
agency; or
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we in our sole discretion determine that such global note will be exchangeable for definitive notes in registered form and notify the trustee of our decision.
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A global note that can be exchanged as described in the preceding sentence will be exchanged for
definitive notes issued in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof in registered form for the same aggregate amount. The definitive notes will be registered in the names of the owners of the beneficial
interests in the global note as directed by DTC.
We will make principal and interest payments on all Notes represented by a global note
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 note for all purposes under the Indenture. Accordingly, we, the
trustee and the 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 New Note represented by a global note;
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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 note 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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DTC has advised us that its current practice is to credit direct participants accounts on each payment date with payments in amounts
proportionate to their respective beneficial interests in the principal amount of such global note as shown on DTCs records, upon DTCs receipt of funds and corresponding detail information. Payments by participants to owners of
beneficial interests in a global note 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, and not of DTC or its nominee, the trustee, any agent of ours, or us, subject to any statutory or regulatory requirements. 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 note, DTC or its nominee, as the case may be, will be considered the sole owner and holder of the Notes represented by that global note for all purposes of the Notes. 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 note 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 may 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 note. 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 note 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 note 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 note. 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.
DTC has advised us that it 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 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.
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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.
DTC has advised us 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
Clearstream has advised us that it is incorporated under the laws of Luxembourg as a professional depositary. 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. Clearstream provides to Clearstream Participants, among other things, services for safekeeping, administration, clearance and settlement of internationally
traded securities and securities lending and borrowing. Clearstream interfaces with domestic securities markets in several countries. As a professional depositary, Clearstream is subject to regulation by the Luxembourg Commission for the Supervision
of the Financial Sector (Commission de Surveillance du Secteur Financier). Clearstream Participants are recognized financial institutions around the world, including underwriters, securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. Clearstreams U.S. Participants are limited to securities brokers and dealers and banks. 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.
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.
Euroclear
Euroclear has advised us that it 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. Euroclear performs various other services, including securities lending and borrowing and interacts with domestic markets in several countries. Euroclear is operated by Euroclear Bank S.A./N.V., or the
Euroclear Operator, under contract with Euroclear plc, a U.K. corporation. 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. Euroclear plc establishes policy for Euroclear on behalf of Euroclear Participants. Euroclear Participants include banks, including central banks, securities brokers and dealers and other professional financial
intermediaries. 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.
The Euroclear Operator is a Belgian bank. As such it is regulated by the Belgian Banking and Finance Commission.
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. 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. All securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific
securities clearance accounts. 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.
Euroclear has further advised us 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 such 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 notes.
Global Clearance and Settlement Procedures
Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC rules and will be settled in
immediately available funds using DTCs Same-Day Funds Settlement System. Secondary market trading between Clearstream Participants and/or Euroclear Participants will occur in the ordinary way in accordance with the applicable rules and
operating procedures of Clearstream and Euroclear and will be settled using the procedures applicable to conventional eurobonds in immediately available funds.
Cross-market transfers between persons holding directly or indirectly through DTC, on the one hand, and directly or indirectly through
Clearstream Participants or Euroclear Participants, on the other, will be effected through DTC in accordance with DTC rules on behalf of the relevant European international clearing system by its U.S. Depositary; however, such cross-market
transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in such system in accordance with its rules and procedures and within its established deadlines (European time). The
relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to its U.S. Depositary to take action to effect final settlement on its behalf by delivering or receiving Notes through
DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Clearstream Participants and Euroclear Participants may not deliver instructions directly to their respective U.S.
Depositaries.
Because of time-zone differences, credits of Notes received through Clearstream or Euroclear as a result of a transaction
with a DTC participant will be made during subsequent securities settlement processing and dated the business day following the DTC settlement date. Such credits or any transactions in such Notes settled during such processing will be reported to
the relevant Euroclear Participants or Clearstream Participants on such business day. Cash received in Clearstream or Euroclear as a result of sales of Notes by or through a Clearstream Participant or a Euroclear Participant to a DTC participant
will be received with value on the DTC settlement date but will be available in the relevant Clearstream or Euroclear cash account only as of the business day following settlement in DTC.
Although DTC, Clearstream and Euroclear have agreed to the foregoing procedures in order to facilitate transfers of Notes among participants
of DTC, Clearstream and Euroclear, they are under no obligation to perform or continue to perform such procedures and such procedures may be modified or discontinued at any time. Neither we nor the paying agent will have any responsibility for the
performance by DTC, Euroclear or Clearstream or their respective direct or indirect participants of their obligations under the rules and procedures governing their operations.
Concerning the Trustee
The Bank of New
York Mellon Trust Company, N.A. is trustee under the Indenture.
Governing Law
The Indenture and the Notes, including any claim or controversy arising out of or relating to the Indenture or the Notes, will be governed by
the laws of the State of New York.
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