If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box.
¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering.
¨
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
DESCRIPTION OF THE DEBT SECURITIES
We have summarized below general terms and conditions of the debt securities that we will offer and sell pursuant to this prospectus. When we
offer to sell a particular series of debt securities, we will describe the specific terms and conditions of the series in a prospectus supplement to this prospectus. We will also indicate in the applicable prospectus supplement whether the general
terms and conditions described in this prospectus apply to the series of debt securities. In addition, the terms and conditions of the debt securities of a series may be different in one or more respects from the terms and conditions described
below. If so, those differences will be described in the applicable prospectus supplement. We may, but need not, describe any additional or different terms and conditions of such debt securities in an annual report on Form 10-K, a quarterly report
on Form 10-Q or a current report on Form 8-K filed with the SEC, the information in which would be incorporated by reference into this prospectus and such report will be identified in the applicable prospectus supplement.
We will issue the debt securities in one or more series under an indenture, dated as of December 20, 2010, between us and Wells Fargo
Bank, National Association, as trustee. The following summary of provisions of the indenture does not purport to be complete and is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture, including
definitions therein of certain terms. This summary may not contain all of the information that you may find useful. The terms and conditions of the debt securities of each series will be set forth in those debt securities and in the indenture. For a
comprehensive description of any series of debt securities being offered to you pursuant to this prospectus, you should read both this prospectus and the applicable prospectus supplement.
We have filed the indenture as an exhibit to the registration statement of which this prospectus forms a part. A form of each debt security,
reflecting the specific terms and provisions of that series of debt securities, will be filed with the SEC in connection with each offering and will be incorporated by reference into the registration statement of which this prospectus forms a part.
You may obtain a copy of the indenture and any form of debt security that has been filed in the manner described under Where You Can Find More Information.
Capitalized terms used and not defined in this summary have the meanings specified in the indenture. For purposes of this section of this
prospectus, references to we, us and our are to C. R. Bard, Inc. (parent company only) and not to any of its subsidiaries. References to the applicable prospectus supplement are to the prospectus
supplement to this prospectus that describes the specific terms and conditions of a series of debt securities.
General
We may offer the debt securities from time-to-time in as many distinct series as we may determine. All debt securities will be our senior
unsecured obligations. The indenture does not limit the amount of debt securities that we may issue under that indenture. We may, without the consent of the holders of the debt securities of any series, issue additional debt securities ranking
equally with, and otherwise similar in all respects to, the debt securities of the series (except for the public offering price and the issue date) so that those additional debt securities will be consolidated and form a single series with the debt
securities of the series previously offered and sold.
The debt securities of each series will be issued in fully registered form without
interest coupons. We currently anticipate that the debt securities of each series offered and sold pursuant to this prospectus will be issued as global debt securities as described under Book-Entry; Delivery and Form; Global
Securities and will trade in book-entry form only.
Debt securities denominated in U.S. dollars will be issued in denominations of
$2,000 and any integral multiple of $1,000 in excess thereof, unless otherwise specified in the applicable prospectus supplement. If the
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debt securities of a series are denominated in a foreign or composite currency, the applicable prospectus supplement will specify the denomination or denominations in which those debt securities
will be issued.
We will repay the debt securities of each series at 100% of their principal amount, together with accrued and unpaid
interest thereon at maturity, unless otherwise specified in the applicable prospectus supplement or if those debt securities have been previously redeemed or purchased and cancelled.
Unless otherwise specified in the applicable prospectus supplement, the debt securities of each series will not be listed on any securities
exchange.
Provisions of Indenture
The indenture provides that debt securities may be issued under it from time-to-time in one or more series. For each series of debt securities,
this prospectus and the applicable prospectus supplement will describe the following terms and conditions of that series of debt securities:
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the title of the series;
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the maximum aggregate principal amount, if any, established for debt securities of the series;
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the person to whom any interest on a debt security of the series will be payable, if other than the person in whose name that debt security (or one or more predecessor debt securities) is registered at the close of
business on the regular record date for such interest;
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the date or dates on which the principal of any debt securities of the series will be payable or the method used to determine or extend those dates;
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the rate or rates at which any debt securities of the series will bear interest, if any, the date or dates from which any such interest will accrue, the interest payment dates on which any such interest will be payable
and the regular record date for any such interest payable on any interest payment date;
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the place or places where the principal of and premium, if any, and interest on any debt securities of the series will be payable and the manner in which any payment may be made;
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the period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of the series may be redeemed, in whole or in part, at our option and, if other than by a
board resolution, the manner in which any election by us to redeem the debt securities will be evidenced;
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our obligation or right, if any, to redeem or purchase any debt securities of the series pursuant to any sinking fund or at the option of the holder thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which any debt securities of the series will be redeemed or purchased, in whole or in part, pursuant to such obligation;
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if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any debt securities of the series will be issuable;
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if the amount of principal of or premium, if any, or interest on any debt securities of the series may be determined with reference to a financial or economic measure or index or pursuant to a formula, the manner in
which such amounts will be determined;
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if other than U.S. dollars, the currency, currencies or currency units in which the principal of or premium, if any, or interest on any debt securities of the series will be payable and the manner of determining the
equivalent thereof in U.S. dollars for any purpose;
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if the principal of or premium, if any, or interest on any debt securities of the series is to be payable, at our
election or the election of the holder thereof, in one or more currencies or currency units other than that or those in which such debt securities are stated to be payable, the currency, currencies or currency
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units in which the principal of or premium, if any, or interest on such debt securities as to which such election is made will be payable, the periods within which and the terms and conditions
upon which such election is to be made and the amount so payable (or the manner in which such amount will be determined);
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if other than the entire principal amount thereof, the portion of the principal amount of any debt securities of the series that will be payable upon declaration of acceleration of the maturity thereof pursuant to the
indenture;
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if the principal amount payable at the stated maturity of any debt securities of the series will not be determinable as of any one or more dates prior to the stated maturity, the amount which will be deemed to be the
principal amount of such debt securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which will be due and payable upon any maturity other than the stated maturity or which will be deemed to be
outstanding as of any date prior to the stated maturity (or, in any such case, the manner in which such amount deemed to be the principal amount will be determined);
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if other than by a board resolution, the manner in which any election by us to defease any debt securities of the series pursuant to the indenture will be evidenced; whether any debt securities of the series other than
debt securities denominated in U.S. dollars and bearing interest at a fixed rate are to be subject to the defeasance provisions of the indenture; or, in the case of debt securities denominated in U.S. dollars and bearing interest at a fixed rate, if
applicable, that the debt securities of the series, in whole or any specified part, will not be defeasible pursuant to the indenture;
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if applicable, that any debt securities of the series will be issuable in whole or in part in the form of one or more global securities and, in such case, the respective depositories for such global securities and the
form of any legend or legends which will be borne by any such global securities, and any circumstances in which any such global security may be exchanged in whole or in part for debt securities registered, and any transfer of such global security in
whole or in part may be registered, in the name or names of persons other than the depositary for such global security or a nominee thereof;
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any addition to, deletion from or change in the events of default applicable to any debt securities of the series and any change in the right of the trustee or the requisite holders of such debt securities to declare
the principal amount thereof due and payable;
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any addition to, deletion from or change in the covenants applicable to debt securities of the series;
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if the debt securities of the series are to be convertible into or exchangeable for cash and/or any securities or other property of any person (including us), the terms and conditions upon which such debt securities
will be so convertible or exchangeable;
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whether the debt securities of the series will be guaranteed by any persons and, if so, the identity of such persons, the terms and conditions upon which such debt securities will be guaranteed and, if applicable, the
terms and conditions upon which such guarantees may be subordinated to other indebtedness of the respective guarantors;
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whether the debt securities of the series will be secured by any collateral and, if so, the terms and conditions upon which such debt securities will be secured and, if applicable, upon which such liens may be
subordinated to other liens securing other indebtedness of us or of any guarantor; and
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any other terms of the debt securities of the series (which terms will not be inconsistent with the provisions of the indenture, except as permitted thereunder).
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Interest and Interest Rates
General
In the applicable prospectus
supplement, we will designate the debt securities of a series as being either debt securities bearing interest at a fixed rate of interest or debt securities bearing interest at a floating rate of interest. Each debt security will begin to accrue
interest from the date on which it is originally issued. Interest on each such debt security will be payable in arrears on the interest payment dates set forth in the applicable prospectus supplement and as otherwise described below and at maturity
or, if earlier, the redemption date described below. Interest will be payable to the holder of record of the debt securities at the close of business on the record date for each interest payment date, which record dates will be specified in such
prospectus supplement.
As used in the indenture, the term business day means, with respect to debt securities of a series,
any day, other than a Saturday or Sunday, that is not a day on which banking institutions are authorized or obligated by law or executive order to close in the place where the principal of, premium, if any, and interest on the debt securities of
that series are payable.
Fixed Rate Debt Securities
If the debt securities of a series being offered will bear interest at a fixed rate of interest, the debt securities of that series will bear
interest at the annual interest rate specified on the cover page of the applicable prospectus supplement. Interest on those debt securities will be payable semi-annually in arrears on the interest payment dates for those debt securities. If the
maturity date, the redemption date or an interest payment date is not a business day, we will pay principal, premium, if any, the redemption price, if any, and interest on the next succeeding business day, and no interest will accrue from and after
the relevant maturity date, redemption date or interest payment date to the date of that payment. Unless otherwise specified in the applicable prospectus supplement, interest on the fixed rate debt securities will be computed on the basis of a
360-day year of twelve 30-day months.
Floating Rate Debt Securities
If the debt securities of a series being offered will bear interest at a floating rate of interest, the debt securities of that series will
bear interest during each relevant interest period at the rate determined as set forth in the applicable prospectus supplement and as otherwise set forth below. Each floating rate debt security will have an interest rate basis or formula.
Unless otherwise specified in the applicable prospectus supplement, we will base that formula on the London Interbank Offered Rate
(LIBOR) for the LIBOR Currency. The LIBOR Currency means the currency specified in the applicable prospectus supplement as to which LIBOR will be calculated or, if no such currency is specified in the applicable prospectus
supplement, U.S. dollars. In the applicable prospectus supplement, we will indicate any spread or spread multiplier to be applied in the interest rate formula to determine the interest rate applicable in any interest period. Unless otherwise
specified in the applicable prospectus supplement, interest will be computed on the basis of the actual number of days during the relevant interest period and a 360-day year.
The floating rate debt securities may have a maximum or minimum rate limitation. In no event, however, will the rate of interest on the debt
securities be higher than the maximum rate of interest permitted by New York law as that law may be modified by U.S. laws of general application.
The applicable prospectus supplement will identify the calculation agent for each series of floating rate debt securities, which will compute
the interest accruing on the debt securities.
If any interest payment date for the debt securities of a series bearing interest at a
floating rate based on LIBOR (other than the maturity date or the redemption date, if any) would otherwise be a day that is not a
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business day, then the interest payment date will be postponed to the following date that is a business day, unless that business day falls in the next succeeding calendar month, in which case
the interest payment date will be the immediately preceding business day. If the maturity date or the redemption date, if any, is not a business day, we will pay principal, premium, if any, the redemption price, if any, and interest on the next
succeeding business day, and no interest will accrue from and after the maturity date or the redemption date, if any, to the date of that payment.
The calculation agent will reset the rate of interest on the debt securities of a series bearing interest at a floating rate based on LIBOR on
each interest payment date. If any of the interest reset dates for the debt securities is not a business day, then that interest reset date will be postponed to the next succeeding business day, unless that day is in the next succeeding calendar
month, in which case the interest reset date will be the immediately preceding business day. The interest rate set for the debt securities on a particular interest reset date will remain in effect during the interest period commencing on that
interest reset date. Each interest period will be the period from and including the interest reset date to, but excluding, the next interest reset date or until the maturity date or redemption date, if any, of the debt securities, as the case may
be.
The calculation agent will determine the interest rate applicable to the debt securities bearing interest at a floating rate based on
LIBOR on the interest determination date, which will be the second London banking day immediately preceding the interest reset date. The interest rate determined on an interest determination date will become effective on and as of the next interest
reset date. The interest determination date for the interest period commencing on the date of issuance of the debt securities will be specified in the applicable prospectus supplement. As used in this prospectus, London banking day means
any day on which dealings in deposits in the LIBOR Currency are transacted in the London interbank market.
If the debt securities bear
interest at a floating rate based on LIBOR, the calculation agent will determine LIBOR according to the following provisions:
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With respect to any interest determination date, LIBOR will be the rate (expressed as a percentage per annum) for deposits in U.S. dollars having a maturity of the Index Maturity commencing on the relevant interest
reset date that appears on Reuters Page LIBOR01 as of 11:00 a.m. (London time) on that interest determination date. If no such rate appears, LIBOR for that interest determination date will be determined in accordance with the following clause (b).
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(b)
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With respect to an interest determination date on which no rate appears on Reuters Page LIBOR01, as specified in the preceding clause (a), the calculation agent will request the principal London offices of each of four
major reference banks in the London interbank market (which may include affiliates of underwriters or the trustee), as selected by us, to provide the calculation agent with its offered quotation (expressed as a percentage per annum) for deposits in
U.S. dollars for the Index Maturity, commencing on the relevant interest reset date, to prime banks in the London interbank market at approximately 11:00 a.m. (London time) on that interest determination date and in a principal amount that is
representative for a single transaction in U.S. dollars in that market at that time. If at least two quotations are provided, then LIBOR on that interest determination date will be the arithmetic mean of those quotations. If fewer than two
quotations are provided, then LIBOR on the interest determination date will be the arithmetic mean of the rates quoted at approximately 11:00 a.m. (New York City time) on the interest determination date by three major banks in New York City (which
may be affiliates of underwriters) selected by us for loans in U.S. dollars to leading European banks, having an Index Maturity, commencing on the relevant interest reset date, and in a principal amount that is representative for a single
transaction in U.S. dollars in that market at that time.
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Reuters Page LIBOR01 means the display that appears on
Reuters (or any successor service) on page LIBOR01 (or any page as may replace such page on such service) for the purpose of displaying London interbank offered rates of major banks for U.S. dollars.
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Index Maturity means the period to maturity of the debt securities with respect to
which the related interest rate basis or formula will be calculated. For example, the Index Maturity may be one month, three months, six months or one year.
All percentages resulting from any calculation will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point with
five one millionths of a percentage point rounded upwards (
e.g.
, 4.876545% (or .04876545) would be rounded to 4.87655% (or .0487655)), and all U.S. dollar amounts used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward).
The calculation agent will promptly notify the trustee of each determination of the interest
rate. The calculation agent will also notify the trustee of the interest rate, the interest amount, the interest period and the interest payment date related to each interest reset date as soon as such information becomes available. The trustee will
make such information available to the holders of the relevant debt securities upon request.
The calculation agents determination
of any interest rate, and its calculation of the amount of interest for any interest period, will be final and binding in the absence of manifest error.
So long as any floating rate debt securities are outstanding, we will at all times maintain a calculation agent. We will appoint a bank, trust
company, investment banking firm or other financial institution to act as the successor calculation agent in the event that:
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any acting calculation agent is unable or unwilling to act;
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any acting calculation agent fails to duly establish the floating interest rate for a series of floating rate debt securities; or
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we propose to remove the calculation agent.
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Optional Redemption
Redemption at Our Option
If specified in
the applicable prospectus supplement, we may elect to redeem all or part of the outstanding debt securities of a series from time-to-time before the maturity date of the debt securities of that series. Upon such election, we will notify the trustee
of the redemption date and the principal amount of debt securities of the series to be redeemed. If less than all the debt securities of the series are to be redeemed, the particular debt securities of that series to be redeemed will be selected by
the trustee by such method as the trustee deems fair and appropriate. The applicable prospectus supplement will specify the redemption price for the debt securities to be redeemed (or the method of calculating such price), in each case in accordance
with the terms and conditions of those debt securities.
Notice of redemption will be given to each holder of the debt securities to be
redeemed not less than 30 nor more than 60 days prior to the date set for such redemption. This notice will include the following information: the redemption date; the redemption price (or the method of calculating such price); if less than all of
the outstanding debt securities of such series are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular debt securities to be redeemed; the place or places where such debt
securities are to be surrendered for payment of the redemption price; and, if applicable, the CUSIP number of the debt securities to be redeemed.
By no later than 11:00 a.m. (New York City time) on the redemption date, we will deposit or cause to be deposited with the trustee or with a
paying agent (or, if we are acting as our own paying agent with respect to the debt securities being redeemed, we will segregate and hold in trust as provided in the indenture) an amount of money sufficient to pay the aggregate redemption price of,
and (except if the redemption date shall be an interest payment date or the debt securities of such series provide otherwise) accrued interest on, all of the debt securities
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or the part thereof to be redeemed on that date. On the redemption date, the redemption price will become due and payable upon all of the debt securities to be redeemed, and interest, if any, on
the debt securities to be redeemed will cease to accrue from and after that date. Upon surrender of any such debt securities for redemption, we will pay those debt securities surrendered at the redemption price together, if applicable, with accrued
interest to the redemption date.
Any debt securities to be redeemed only in part must be surrendered at the office or agency established
by us for such purpose, and we will execute, and the trustee will authenticate and deliver to a holder without service charge, new debt securities of the same series and of like tenor, of any authorized denominations as requested by that holder, in
a principal amount equal to and in exchange for the unredeemed portion of the debt securities that holder surrenders.
Repayment at Holders
Option
If specified in the applicable prospectus supplement, the holders of the debt securities of a series will have the option to
elect repayment of those debt securities by us prior to the stated maturity of the debt securities of that series at time or times and subject to the conditions specified in the applicable prospectus supplement. If the holders of those debt
securities have that option, the applicable prospectus supplement will specify the optional repayment date or dates on which the debt security may be repaid and the optional repayment price, or the method by which such price will be determined. The
optional repayment price is the price at which, together with accrued interest to the optional repayment date, the debt security may be repaid at the holders option on each such optional repayment date.
Any tender of a debt security by the holder for repayment will be irrevocable. Any repayment option of a holder may be exercised by the holder
of debt securities for less than the entire principal amount of the debt security, provided that the principal amount of the debt security remaining outstanding after repayment will be an authorized denomination. Upon such partial repayment, the
debt securities will be canceled and new debt securities for the remaining principal amount will be issued in the name of the holder of the repaid debt securities.
If debt securities are represented by a global security as described under Book-Entry; Delivery and Form; Global Securities,
the securities depositary for the global security or its nominee will be the holder of the debt security and, therefore, will be the only person that can exercise a right to repayment. In order to ensure that the depositary or its nominee will
timely exercise a right to repayment relating to a particular debt security, the beneficial owner of the debt security must instruct the broker or other direct or indirect participant in the depositary through which it holds an interest in the debt
security to notify the depositary of its desire to exercise a right to repayment by the appropriate cut-off time for notifying the participant. Different firms have different cut-off times for accepting instructions from their customers.
Accordingly, you should consult the broker or other direct or indirect participant through which you hold an interest in a debt security in order to ascertain the cut-off time by which such an instruction must be given for timely notice to be
delivered to the appropriate depositary.
Payment and Transfer or Exchange
Principal of and premium, if any, and interest on the debt securities of each series will be payable, and the debt securities may be exchanged
or transferred, at the office or agency maintained by us for such purpose (which initially will be the corporate trust office of the trustee located at 150 East 42nd Street, 40th Floor, New York, New York 10017, Attention: Corporate Trust Services,
AdministratorC. R. Bard, Inc.). Payment of principal of and premium, if any, and interest on a global security registered in the name of or held by The Depository Trust Company (DTC), or its nominee will be made in immediately
available funds to DTC or its nominee, as the case may be, as the registered holder of such global security. If any of the debt securities is no longer represented by a global security, payment of interest on certificated debt securities in
definitive form may, at our option, be made by check mailed directly to holders at their registered addresses. See Book-Entry; Delivery and Form; Global Securities.
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A holder may transfer or exchange any certificated debt securities in definitive form at the same
location given in the preceding paragraph. No service charge will be made for any registration of transfer or exchange of debt securities, but we may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge
payable in connection therewith.
We are not required to transfer or exchange any debt security selected for redemption in part for a
period of 15 days before mailing of a notice of redemption of the debt security to be redeemed.
The registered holder of a debt security
will be treated as the owner of it for all purposes.
All amounts of principal of and premium, if any, or interest on the debt securities
paid by us that remain unclaimed two years after such payment was due and payable will be repaid to us, and the holders of such debt securities will thereafter look solely to us for payment.
Covenants
The indenture sets forth
limited covenants, including the covenant described below, that will apply to each series of debt securities issued under the indenture, unless otherwise specified in the applicable prospectus supplement. However, these covenants do not, among other
things:
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limit the amount of indebtedness or lease obligations that may be incurred by us and our subsidiaries;
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limit our ability or that of our subsidiaries to issue, assume or guarantee debt secured by liens; or
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restrict us from paying dividends or making distributions on our capital stock or purchasing or redeeming our capital stock.
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Reports
Whether or not required by the
SECs rules and regulations, so long as any series of debt securities issued under the indenture are outstanding, we will furnish to the holders of the debt securities of that series or cause the trustee to furnish to the holders of the debt
securities of that series, within 15 days after the time periods (including any extensions thereof) specified in the SECs rules and regulations:
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all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and
10-K
if we were required to file such reports; and
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(2)
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all current reports that would be required to be filed with the SEC on Form 8-K if we were required to file such reports.
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To the extent such filings are made with the SEC or the reports are posted on our website, the reports will be deemed to be furnished to the
trustee and holders of the debt securities of that series.
In addition, we agree that, for so long as any series of debt securities
issued under the indenture remain outstanding, at any time we are not required to file the reports required by the preceding paragraphs with the SEC, we will furnish to the holders of the debt securities of that series and to securities analysts and
prospective investors, upon their written request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Consolidation, Merger and Sale of Assets
The indenture provides that we may consolidate with or merge with or into any other person, and may sell, transfer, or lease or convey all or
substantially all of our properties and assets to another person, provided that the following conditions are satisfied:
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we are the continuing entity, or the resulting, surviving or transferee person (the Successor) is a
person organized and existing under the laws of the United States of America, any state thereof or the
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District of Columbia and the Successor (if not us) will expressly assume, by supplemental indenture, all of our obligations under the debt securities and the indenture and, for each security that
by its terms provides for conversion, provide for the right to convert such security in accordance with its terms;
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immediately after giving effect to such transaction, no default or event of default under the indenture and no circumstances which, after notice or lapse of time or both, would become an event of default, has occurred
and is continuing; and
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if requested, the trustee receives from us, if requested, an officers certificate and an opinion of counsel that the merger, consolidation or transfer and such supplemental indenture, as the case may be, complies
with the applicable provisions of the indenture.
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If we consolidate or merge with or into any other person or sell,
transfer, lease or convey all or substantially all of our properties and assets in accordance with the indenture, the Successor will be substituted for us in the indenture, with the same effect as if it had been an original party to the indenture.
As a result, the Successor may exercise our rights and powers under the indenture, and we will be released from all our liabilities and obligations under the indenture and under the debt securities.
Any substitution of the Successor for us might be deemed for federal income tax purposes to be an exchange of the debt securities for
new debt securities, resulting in recognition of gain or loss for such purposes and possibly certain other adverse tax consequences to beneficial owners of the debt securities. Holders should consult their own tax advisors regarding the
tax consequences of any such substitution.
For purposes of this covenant, person means any individual, corporation,
partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity.
Events of Default
Each of the following
events are defined in the indenture as an event of default (whatever the reason for such event of default and whether or not it will be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body) with respect to the debt securities of any series:
(1) default in the payment of any installment of interest on any debt securities of that series for 30 days after becoming due;
(2) default in the payment of principal of or premium, if any, on any debt securities of that series when it becomes due and payable at its
stated maturity, upon optional redemption, upon declaration or otherwise;
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any debt securities of that series;
(4) default in the performance, or breach, of any covenant or agreement of
ours in the indenture with respect to the debt securities of that series (other than as referred to in clause (1), (2) or (3) above), which continues for a period of 90 days after written notice to us by the trustee or to us and the
trustee by the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series;
(5) pursuant to
or within the meaning of the Bankruptcy Law, we:
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commence a voluntary case or proceeding;
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consent to the entry of an order for relief against us in an involuntary case or proceeding;
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consent to the appointment of a Custodian of us or for all or substantially all of our property;
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make a general assignment for the benefit of our creditors;
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file a petition in bankruptcy or answer or consent seeking reorganization or relief;
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consent to the filing of such petition or the appointment of or taking possession by a Custodian; or
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take any comparable action under any foreign laws relating to insolvency;
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(6) a court of
competent jurisdiction enters an order or decree under any Bankruptcy Law that:
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is for relief against us in an involuntary case, or adjudicates us insolvent or bankrupt;
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appoints a Custodian of us or for all or substantially all of our property; or
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orders the winding-up or liquidation of us (or any similar relief is granted under any foreign laws),
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and the
order or decree remains unstayed and in effect for 90 days; or
(7) any other event of default provided with respect to debt securities of
that series occurs.
Bankruptcy Law means Title 11, United States Code or any similar federal or state or foreign law for the
relief of debtors.
Custodian means any custodian, receiver, trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
If an event of default with respect to debt securities of any series (other than an event of default relating to certain
events of bankruptcy, insolvency, or reorganization of us) occurs and is continuing, the trustee, by notice to us, or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us and
the trustee, may, and the trustee at the request of these holders will, declare the principal of and premium, if any, and accrued and unpaid interest on all the debt securities of that series to be due and payable. Upon such a declaration, such
principal, premium and accrued and unpaid interest will be due and payable immediately. If an event of default relating to certain events of bankruptcy, insolvency, or reorganization of us occurs and is continuing, the principal of and premium, if
any, and accrued and unpaid interest on the debt securities of that series will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holders.
The holders of not less than a majority in aggregate principal amount of the outstanding debt securities of any series may rescind a
declaration of acceleration and its consequences, if we have deposited certain sums with the trustee and all events of default with respect to the debt securities of that series, other than the non-payment of the principal or interest which have
become due solely by such acceleration, have been cured or waived, as provided in the indenture.
An event of default for a particular
series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the indenture.
We are required to furnish the trustee annually a statement by certain of our officers to the effect that, to the best of their knowledge, we
are not in default in the fulfillment of any of our obligations under the indenture or, if there has been a default in the fulfillment of any such obligation, specifying each such default and the nature and status of such default.
No holder of any debt securities of any series will have any right to institute any judicial or other proceeding with respect to the
indenture, or for the appointment of a receiver or trustee, or for any other remedy unless:
(1) an event of default has occurred and is
continuing and such holder has given the trustee prior written notice of such continuing event of default with respect to the debt securities of that series;
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(2) the holders of not less than 25% of the aggregate principal amount of the outstanding debt
securities of that series have requested the trustee to institute proceedings in respect of such event of default;
(3) the trustee has
been offered indemnity reasonably satisfactory to it against its costs, expenses and liabilities in complying with such request;
(4) the
trustee has failed to institute proceedings 60 days after the receipt of such notice, request and offer of indemnity; and
(5) no
direction inconsistent with such written request has been given for 60 days by the holders of a majority in aggregate principal amount of the outstanding debt securities of that series.
The holders of a majority in aggregate principal amount of outstanding debt securities of a series will have the right, subject to certain
limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the trustee with respect to the debt securities of that series or exercising any trust or power conferred to the trustee, and to waive certain
defaults. The indenture provides that if an event of default occurs and is continuing, the trustee will exercise such of its rights and powers under the indenture, and use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such persons own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any of
the holders of the debt securities of a series unless they will have offered to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request.
Notwithstanding the foregoing, the holder of any debt security will have an absolute and unconditional right to receive payment of the
principal of and premium, if any, and interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
Modification and Waivers
Modification
and amendments of the indenture and the debt securities of any series may be made by us and the trustee with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of that series
affected thereby; provided, however, that no such modification or amendment may, without the consent of the holder of each outstanding debt security of that series affected thereby:
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change the stated maturity of the principal of, or installment of interest on, any debt security;
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reduce the principal amount of any debt security or reduce the amount of the principal of any debt security which would be due and payable upon a declaration of acceleration of the maturity thereof or reduce the rate of
interest on any debt security;
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reduce any premium payable on the redemption of any debt security or change the date on which any debt security may or must be redeemed;
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change the coin or currency in which the principal of or premium, if any, or interest on any debt security is payable;
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impair the right of any holder to institute suit for the enforcement of any payment on or after the stated maturity of any debt security (or, in the case redemption, on or after the redemption date);
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reduce the percentage in principal amount of the outstanding debt securities, the consent of whose holders is required in order to take certain actions;
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reduce the requirements for voting by holders of debt securities in the indenture or the debt security;
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modify any of the provisions in the indenture regarding the waiver of past defaults and the waiver of certain covenants by the holders of debt securities except to increase any percentage vote required or to provide
that certain other provisions of the indenture cannot be modified or waived without the consent of the holder of each debt security affected thereby; or
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make any change that adversely affects the right to convert or exchange any debt security or decreases the conversion or exchange rate or increases the conversion price of any convertible or exchangeable debt security,
unless such decrease or increase is permitted by the terms of the debt securities; or
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modify any of the above provisions.
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We and the trustee may, without the consent of any
holders, modify or amend the terms of the indenture and the debt securities of any series with respect to the following:
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to add to our covenants for the benefit of holders of the debt securities of all or any series or to surrender any right or power conferred upon us;
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to evidence the succession of another person to, and the assumption by the Successor of our covenants, agreements and obligations under, the indenture pursuant to the covenant described under
CovenantsConsolidation, Merger and Sale of Assets;
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to add any additional events of default for the benefit of holders of the debt securities of all or any series;
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to add one or more guarantees for the benefit of holders of the debt securities;
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to secure the debt securities pursuant to the covenants of the indenture;
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to add or appoint a successor or separate trustee or other agent;
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to provide for the issuance of additional debt securities of any series;
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to establish the form or terms of debt securities of any series as permitted by the indenture;
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to comply with the rules of any applicable securities depositary;
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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to add to, change or eliminate any of the provisions of the indenture in respect of one or more series of debt securities; provided that any such addition, change or elimination (a) shall neither (1) apply to
any debt security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (2) modify the rights of the holder of any such debt security with respect to such provision or
(b) shall become effective only when there is no debt security described in clause (1) outstanding;
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to cure any ambiguity, defect or inconsistency; or
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to change any other provision; provided that the change does not adversely affect the interests of the holders of debt securities of any series in any material respect.
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The holders of at least a majority in aggregate principal amount of the outstanding debt securities of any series may, on behalf of the
holders of all debt securities of that series, waive compliance by us with certain restrictive provisions of the indenture. The holders of not less than a majority in aggregate principal amount of the outstanding debt securities of a series may, on
behalf of the holders of all debt securities of that series, waive any past default and its consequences under the indenture with respect to the debt securities of that series, except a default (1) in the payment of principal or premium, if
any, or interest on debt securities of that series or (2) in respect of a covenant or provision of the indenture that cannot be modified or amended without the consent of the holder of each debt security of that series. Upon any such waiver,
such default will cease to exist, and any event of default arising therefrom will be deemed to have been cured, for every purpose of the indenture; however, no such waiver will extend to any subsequent or other default or event of default or impair
any rights consequent thereon.
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Discharge, Defeasance and Covenant Defeasance
We may discharge certain obligations to holders of the debt securities of a series that have not already been delivered to the trustee for
cancellation and that either have become due and payable or will become due and payable within one year (or scheduled for redemption within one year) by depositing with the trustee, in trust, funds in U.S. dollars in an amount sufficient to pay the
entire indebtedness including the principal and premium, if any, and interest to the date of such deposit (if the debt securities have become due and payable) or to the maturity thereof or the redemption date of the debt securities of that series,
as the case may be. We may direct the trustee to invest such funds in U.S. Treasury securities with a maturity of one year or less or in a money market fund that invests solely in short-term U.S. Treasury securities.
The indenture provides that we may elect either (1) to defease and be discharged from any and all obligations with respect to the debt
securities of a series (except for, among other things, obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency with
respect to the debt securities and to hold monies for payment in trust) (legal defeasance) or (2) to be released from our obligations to comply with the restrictive covenants under the indenture, and any omission to comply with such
obligations will not constitute a default or an event of default with respect to the debt securities of a series and clauses (4) and (7) under Events of Default will no longer be applied (covenant defeasance).
Legal defeasance or covenant defeasance, as the case may be, will be conditioned upon, among other things, the irrevocable deposit by us with the trustee, in trust, of an amount in U.S. dollars, or U.S. government obligations, or both, applicable to
the debt securities of that series which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal or premium, if any, and interest on the debt securities
on the scheduled due dates therefor.
If we effect covenant defeasance with respect to the debt securities of any series, the amount in
U.S. dollars, or U.S. government obligations, or both, on deposit with the trustee will be sufficient, in the opinion of a nationally recognized firm of independent accountants, to pay amounts due on the debt securities of that series at the time of
the stated maturity (which may not be sufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting from such event of default). However, we would remain liable to make payment of such amounts due at
the time of acceleration.
We will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance
will not cause the holders and beneficial owners of the debt securities of that series to recognize income, gain or loss for federal income tax purposes. If we elect legal defeasance, that opinion of counsel must be based upon a ruling from the U.S.
Internal Revenue Service or a change in law to that effect.
We may exercise our legal defeasance option notwithstanding our prior
exercise of our covenant defeasance option.
Same-Day Settlement and Payment
Unless otherwise provided in the applicable prospectus supplement, the debt securities will trade in the same-day funds settlement system of
DTC until maturity or until we issue the debt securities in certificated form. DTC will therefore require secondary market trading activity in the debt securities to settle in immediately available funds. We can give no assurance as to the effect,
if any, of settlement in immediately available funds on trading activity in the debt securities.
Book-Entry; Delivery and Form; Global Securities
Unless otherwise specified in the applicable prospectus supplement, the debt securities of each series will be issued in the form of
one or more global debt securities, in definitive, fully registered form without interest
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coupons, each of which we refer to as a global security. Each such global security will be deposited with the trustee as custodian for DTC and registered in the name of a nominee of
DTC in New York, New York for the accounts of participants in DTC.
Investors may hold their interests in a global security directly
through DTC if they are DTC participants, or indirectly through organizations that are DTC participants. Except in the limited circumstances described below, holders of debt securities represented by interests in a global security will not be
entitled to receive their debt securities in fully registered certificated form.
DTC has advised us as follows: DTC is a limited-purpose
trust company organized under 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 pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold securities of institutions that have accounts with DTC (participants) and to
facilitate the clearance and settlement of securities transactions among its participants in such securities through electronic book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities
certificates. DTCs participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Access to DTCs book-entry system is also available to others
such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a participant, whether directly or indirectly.
Ownership of Beneficial Interests
Upon
the issuance of each global security, DTC will credit, on its book-entry registration and transfer system, the respective principal amount of the individual beneficial interests represented by the global security to the accounts of participants.
Ownership of beneficial interests in each global security will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests in each global security will be shown on, and the transfer of those
ownership interests will be effected only through, records maintained by DTC (with respect to participants interests) and such participants (with respect to the owners of beneficial interests in the global security other than participants).
So long as DTC or its nominee is the registered holder and owner of a global security, DTC or such nominee, as the case may be, will be
considered the sole legal owner of the debt security represented by the global security for all purposes under the indenture, the debt securities and applicable law. Except as set forth below, owners of beneficial interests in a global security will
not be entitled to receive certificated debt securities and will not be considered to be the owners or holders of any debt securities represented by the global security. We understand that under existing industry practice, in the event an owner of a
beneficial interest in a global security desires to take any actions that DTC, as the holder of the global security, is entitled to take, DTC would authorize the participants to take such action, and that participants would authorize beneficial
owners owning through such participants to take such action or would otherwise act upon the instructions of beneficial owners owning through them. No beneficial owner of an interest in a global security will be able to transfer such interest except
in accordance with DTCs applicable procedures, in addition to those provided for under the indenture. Because DTC can only act on behalf of participants, who in turn act on behalf of others, the ability of a person having a beneficial interest
in a global security to pledge that interest to persons that do not participate in the DTC system, or otherwise to take actions in respect of that interest, may be impaired by the lack of a physical certificate representing that interest.
All payments on the debt securities represented by a global security registered in the name of and held by DTC or its nominee will be made to
DTC or its nominee, as the case may be, as the registered owner and holder of the global security.
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We expect that DTC or its nominee, upon receipt of any payment of principal, premium, if any, or
interest in respect of a global security, will credit participants accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown on the records of DTC or its
nominee. We also expect that payments by participants to owners of beneficial interests in the global security held through such participants will be governed by standing instructions and customary practices as is now the case with securities held
for accounts for customers registered in the names of nominees for such customers. These payments, however, will be the responsibility of such participants and indirect participants, and neither we, the trustee nor any paying agent will have any
responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in any global security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests or for any other aspect of the relationship between DTC and its participants or the relationship between such participants and the owners of beneficial interests in the global security.
Unless and until it is exchanged in whole or in part for certificated debt securities, each global security may not be transferred except as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC. Transfers between participants in DTC will be effected in the ordinary way in accordance with DTC rules and will be settled in same-day funds.
We expect that DTC will take any action permitted to be taken by a holder of debt securities only at the direction of one or more participants
to whose account the DTC interests in a global security are credited and only in respect of such portion of the aggregate principal amount of the debt securities as to which such participant or participants has or have given such direction. However,
if there is an event of default under the debt securities, DTC will exchange each global security for certificated debt securities, which it will distribute to its participants.
Although we expect that DTC will agree to the foregoing procedures in order to facilitate transfers of interests in each global security among
participants of DTC, DTC is under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. Neither we, the underwriters nor the trustee will have any responsibility for the performance or
nonperformance by DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
The indenture provides that the global securities will be exchanged for debt securities in certificated form of like tenor and of an equal
principal amount, in authorized denominations in the following limited circumstances:
(1) DTC or another depositary for the debt
securities notifies us that it is unwilling or unable to continue as depositary;
(2) we determine that the debt securities will no longer
be represented by global securities and execute and deliver to the trustee an order to such effect; or
(3) an event of default with
respect to the debt securities will have occurred and be continuing.
These certificated debt securities will be registered in such name
or names as DTC or such other depositary will instruct the trustee. It is expected that such instructions may be based upon directions received by DTC or other depositary from participants with respect to ownership of beneficial interests in global
securities.
The information in this section of this prospectus concerning DTC and DTCs book-entry system has been obtained from
sources that we believe to be reliable, but we do not take responsibility for this information.
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Euroclear and Clearstream
If the depositary for a global security is DTC, you may hold interests in the global security through Clearstream Banking,
société anonyme
(Clearstream) or Euroclear Bank SA/NV, as operator of the Euroclear System (Euroclear) in each case, as a participant in DTC. Euroclear and Clearstream will hold interests, in each case,
on behalf of their participants through customers securities accounts in the names of Euroclear and Clearstream on the books of their respective depositories, which in turn will hold such interests in customers securities in the
depositories names on DTCs books.
Payments, deliveries, transfers, exchanges, notices and other matters relating to the debt
securities made through Euroclear or Clearstream must comply with the rules and procedures of those systems. Those systems could change their rules and procedures at any time. We have no control over those systems or their participants, and we take
no responsibility for their activities. Transactions between participants in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other hand, would also be subject to DTCs rules and procedures.
Investors will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers, exchanges, notices and other
transactions involving any securities held through those systems only on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United
States.
In addition, because of time-zone differences, U.S. investors who hold their interests in the debt securities through these
systems and wish on a particular day, to transfer their interests, or to receive or make a payment or delivery or exercise any other right with respect to their interests, may find that the transaction will not be effected until the next business
day in Luxembourg or Brussels, as applicable. Thus, investors who wish to exercise rights that expire on a particular day may need to act before the expiration date. In addition, investors who hold their interests through both DTC and Euroclear or
Clearstream may need to make special arrangements to finance any purchase or sales of their interests between the U.S. and European clearing systems, and those transactions may settle later than transactions within one clearing system.
Governing Law
The indenture and the debt
securities will be governed by, and construed in accordance with, the laws of the State of New York.
Regarding the Trustee
Wells Fargo Bank, National Association is the trustee under the indenture.
The trustee is permitted to engage in transactions, including commercial banking and other transactions, with us and our subsidiaries from
time-to-time; provided that if the trustee acquires any conflicting interest it must eliminate such conflict upon the occurrence of an event of default, or else resign.
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