e424b2
CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
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Amount to be
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Maximum Aggregate
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Amount of
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Securities to be Registered
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Registered
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Offering Price
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Registration Fee(1)
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3.00% Senior Notes due April 15, 2016
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$
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375,000,000
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100
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%
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$
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43,537.50
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(1) |
The filing fee is calculated in accordance with Rule 457(r)
under the Securities Act of 1933, as amended.
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Filed
pursuant to Rule 424(b)(2)
Registration
No. 333-160215
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED JUNE 25, 2009
$375,000,000
Analog Devices, Inc.
3.00% Notes Due
April 15, 2016
We will pay interest on the notes semi-annually in arrears
each April 15 and October 15. The first interest
payment will be made on October 15, 2011. The notes will
mature on April 15, 2016.
We may redeem some or all of the notes at any time and from time
to time at the prices described under the heading
Description of Notes Optional
Redemption. There is no sinking fund for the notes.
The notes will be our senior unsecured obligations. The notes
will rank equally in right of payment with all of our other
current and future senior unsecured debt and senior in right of
payment to all of our future subordinated debt.
Investing in the notes involves risks. See Risk
Factors beginning on
page S-6.
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Underwriting
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Proceeds,
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Price to
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Discounts and
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before expenses,
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Public(1)
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Commissions
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to
ADI(1)
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Per Note
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99.528
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%
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0.600
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%
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98.928
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%
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Total
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$
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373,230,000
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$
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2,250,000
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$
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370,980,000
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(1) |
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Plus accrued interest, if any, from April 4, 2011, if
settlement occurs after that date. |
Delivery of the notes in book-entry form will be made through
the facilities of the Depository Trust Company on or about
April 4, 2011.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
Book-Running Managers
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Credit
Suisse |
BofA Merrill Lynch |
Co-Manager
Goldman, Sachs &
Co.
The date of this prospectus supplement is March 30, 2011.
TABLE OF
CONTENTS
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Page
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Prospectus Supplement
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S-1
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S-2
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S-3
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S-6
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S-9
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S-10
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S-11
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S-19
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S-24
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S-27
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S-28
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S-28
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S-29
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S-29
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Page
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Prospectus
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About This Prospectus
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1
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Where You Can Find More Information
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1
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Incorporation by Reference
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1
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Cautionary Note Regarding Forward Looking Statements
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2
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The Company
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3
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Consolidated Ratios of Earnings to Fixed Charges
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3
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Use of Proceeds
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3
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Description of Debt Securities
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3
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Forms of Securities
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10
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Plan of Distribution
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11
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Legal Matters
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13
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Experts
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13
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You should rely only on the information contained in or
incorporated by reference into this prospectus supplement and
the accompanying prospectus or information contained in a free
writing prospectus that we authorize to be delivered to you.
This prospectus supplement may be used only for the purpose for
which it has been prepared. No one is authorized to give
information other than that contained in this prospectus
supplement and in the documents referred to in this prospectus
supplement. We have not, and the underwriters have not,
authorized any other person to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it.
We are not, and the underwriters are not, making an offer to
sell these securities in any jurisdiction where the offer or
sale is not permitted. You should not assume that the
information appearing in this prospectus supplement or any
document incorporated by reference herein or therein is accurate
as of any date other than the date of the applicable document.
Our business, financial condition, results of operations and
prospects may have changed since that date. Neither this
prospectus supplement nor the accompanying prospectus
constitutes an offer, or an invitation on our behalf or on
behalf of the underwriters, to subscribe for and purchase any of
the securities and may not be used for or in connection with an
offer or solicitation by anyone, in any jurisdiction in which
such an offer or solicitation is not authorized or to any person
to whom it is unlawful to make such an offer or solicitation.
ABOUT
THIS PROSPECTUS SUPPLEMENT
This document consists of two parts. The first part is the
prospectus supplement, which describes the specific terms of
this offering. The second part is the accompanying prospectus,
which describes more general information, some of which may not
apply to this offering. You should read both this prospectus
supplement and the accompanying prospectus, together with
additional information described under the heading Where
You Can Find More Information on
page S-29.
In this prospectus supplement and the accompanying prospectus,
the Company, we, our,
ours and us refer to Analog Devices,
Inc. and its subsidiaries on a consolidated basis, unless the
context otherwise requires. If the information set forth in this
prospectus supplement differs in any way from the information
set forth in the accompanying prospectus, you should rely on the
information set forth in this prospectus supplement.
Currency amounts in this prospectus supplement are stated in
U.S. dollars.
S-1
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus and the
documents that we incorporate by reference contain
forward-looking statements that are subject to the safe harbors
created under the Securities Act of 1933 (the Securities
Act) and the Securities Exchange Act of 1934 (the
Exchange Act). These statements are based on current
expectations, estimates, forecasts, and projections about the
industries in which we operate and the beliefs and assumptions
of our management. Words such as expects,
anticipates, targets, goals,
projects, intends, plans,
believes, seeks, estimates,
continues, may, variations of such words
and similar expressions are intended to identify such
forward-looking statements. In addition, any statements that
refer to projections regarding our future financial performance,
particularly in light of the uncertainty remaining after the
global credit and financial market crisis over the past two
years; our anticipated growth and trends in our businesses; our
future capital needs and capital expenditures; our future market
position and competitive changes in the marketplace for our
products; our ability to innovate new products and technologies;
the timing or the effectiveness of our continuing efforts to
refocus our operations and reduce our cost structure and the
expected amounts of any cost savings related to those efforts;
our ability to access credit or capital markets; our ability to
pay dividends or repurchase stock; our ability to service our
outstanding debt; our expected tax rate; the future action of
our third-party suppliers; our reliance on assembly and test
subcontractors, third-party wafer fabricators and independent
distributors; the expected outcomes of intellectual property and
litigation matters; the ability to safeguard our patents and
intellectual property; potential acquisitions or divestitures;
the continued availability of key personnel; the global nature
of our operations; the effect of new accounting pronouncements
and other characterizations of future events or circumstances
are forward-looking statements. You are cautioned that these
forward-looking statements are only predictions and are subject
to risks, uncertainties and assumptions that are difficult to
predict. You should pay particular attention to the important
risk factors and cautionary statements referenced in the section
of this prospectus supplement entitled Risk Factors
beginning on
page S-6.
You should also carefully review the risk factors and cautionary
statements described in the other documents we file from time to
time with the SEC, specifically our Annual Report on
Form 10-K,
our Quarterly Reports on
Form 10-Q
and our Current Reports on
Form 8-K.
We undertake no obligation to revise or update any
forward-looking statements, except to the extent required by law.
S-2
SUMMARY
This summary highlights information contained elsewhere in,
or incorporated by reference into, this prospectus supplement
and the accompanying prospectus. As a result, it may not contain
all of the information that may be important to you or that you
should consider before investing in the notes. You should read
this entire prospectus supplement and accompanying prospectus,
including the Risk Factors section and the documents
incorporated by reference, which are described under Where
You Can Find More Information on
page S-29.
The
Company
We are a world leader in the design, manufacture and marketing
of high-performance analog, mixed-signal and digital signal
processing integrated circuits used in virtually all types of
electronic equipment. Since our inception in 1965, we have
focused on solving the engineering challenges associated with
signal processing in electronic equipment. Our signal processing
products translate real-world phenomena such as light, sound,
temperature, motion and pressure into electrical signals to be
used in a wide array of electronic devices.
We sell our products worldwide through a direct sales force,
third-party distributors and independent sales representatives
and through our website. We have direct sales offices in 17
countries, including the United States.
We are incorporated in Massachusetts. As of October 30,
2010, we employed approximately 8,500 individuals worldwide.
Our common stock is listed on the New York Stock Exchange under
the ticker symbol ADI and is included in the
Standard & Poors 500 Index. Our principal
executive offices are located at One Technology Way, Norwood,
Massachusetts 02062, and our telephone number is
(781) 329-4700.
S-3
The
Offering
The summary below describes the principal terms of the notes.
Some of the terms and conditions described below are subject to
important limitations and exceptions. See Description of
Notes for a more detailed description of the terms and
conditions of the notes.
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Issuer |
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Analog Devices, Inc. |
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Securities Offered |
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$375 million initial aggregate principal amount of
3.00% notes due April 15, 2016. |
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Maturity |
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April 15, 2016. |
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Interest Rate |
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The notes will bear interest at a rate of 3.00% per year payable
on April 15 and October 15 of each year, commencing on
October 15, 2011. |
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Ranking |
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The notes will be our senior unsecured obligations. The notes
will rank equally in right of payment with all of our other
current and future senior unsecured debt, including our
5.00% senior unsecured notes due July 1, 2014, and
senior in right of payment to all of our future subordinated
debt. The notes will be effectively subordinated to: |
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any of our secured debt, to
the extent of the assets securing that debt; and
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any debt for money borrowed
and other liabilities of our subsidiaries, to the extent of the
assets of those subsidiaries.
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Covenants |
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The indenture governing the notes contains covenants that, among
other things, will limit our ability to: |
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incur, create, assume or
guarantee any debt for borrowed money secured by a lien upon our
principal property;
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enter into sale and
lease-back transactions; and
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consolidate with or merge
into, or transfer or lease all or substantially all of our
assets to, any other party.
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These covenants are subject to important exceptions and
qualifications that are described under the heading
Description of Notes Limitation on
Liens, Limitation on Sale and Lease-Back
Transactions and Limitation on Mergers
and Other Transactions in this prospectus supplement. |
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Repurchase Offer Upon a Change of Control Triggering Event |
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If we experience a Change of Control Triggering
Event (as defined in Description of
Notes Change of Control Offer), we will be
required, unless we have exercised our option to redeem the
notes or have defeased or satisfied and discharged the notes, to
offer to purchase the notes at a purchase price equal to 101% of
their principal amount plus accrued and unpaid interest, if any. |
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Optional Redemption |
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The notes will be redeemable at our option, at any time in whole
or from time to time in part, at a redemption price equal to the
greater of (1) 100% of the principal amount of the notes to
be redeemed and (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon
discounted to |
S-4
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the redemption date on a semi-annual basis (assuming a
360-day year
consisting of twelve
30-day
months) at the Treasury Rate plus 15 basis points, plus
accrued and unpaid interest. See Description of
Notes Optional Redemption. |
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Sinking Fund |
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None. |
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Use of Proceeds |
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We estimate that the net proceeds we will receive from this
offering will be approximately $370.4 million, after
deducting estimated expenses and underwriting discounts and
commissions. We intend to use the net proceeds from this
offering for general corporate purposes, which may include
capital expenditures, repurchases of our common stock under our
stock repurchase program, dividend payments and acquisitions. |
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Denominations and Form |
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We will issue the notes in the form of one or more fully
registered global notes registered in the name of the nominee of
The Depository Trust Company (DTC). The notes will be
issued in minimum denominations of $2,000 and in integral
multiples of $1,000 in excess thereof. |
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No Listing |
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We do not intend to apply for the listing of the notes on any
securities exchange or for the quotation of the notes in any
dealer quotation system. |
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Risk Factors |
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An investment in the notes involves risks. You should carefully
consider the information set forth in the section of this
prospectus supplement entitled Risk Factors
beginning on
page S-6,
as well as other information included or incorporated by
reference in this prospectus supplement and the accompanying
prospectus before deciding whether to invest in the notes. |
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Trustee, Registrar and Paying Agent |
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The Bank of New York Mellon Trust Company, N.A. |
Consolidated
Ratios of Earnings to Fixed Charges
The following table presents our consolidated ratio of earnings
to fixed charges for each of the periods indicated. You should
read this table in conjunction with the consolidated financial
statements and notes incorporated by reference in the
accompanying prospectus.
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Three Months Ended
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Fiscal Year Ended
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January 29,
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January 30,
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October 30,
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October 31,
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November 1,
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November 3,
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October 28,
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2011
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2010
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2010
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2009
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2008
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2007
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2006
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Consolidated Ratios of Earnings to Fixed Charges
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87.4
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53.6
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80.2
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57.9
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416.1
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362.2
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305.7
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For purposes of computing the ratio of earnings to fixed
charges, earnings consist of income before income taxes plus
amortization of capitalized interest and fixed charges. Fixed
charges consist of interest expense (including an estimate of
interest within rent expense).
S-5
RISK
FACTORS
Before you decide to invest in the notes, you should
carefully consider the factors set forth below, as well as the
risk factors discussed in our Quarterly Report on Form 10-Q
for the fiscal quarter ended January 29, 2011, which is
incorporated by reference in this prospectus supplement and the
accompanying prospectus. See Where You Can Find More
Information in this prospectus supplement. The information
contained or incorporated by reference in this prospectus
supplement and the accompanying prospectus includes
forward-looking statements that involve risks and uncertainties.
We refer you to Cautionary Note Regarding Forward-Looking
Statements in this prospectus supplement.
The
indenture does not restrict our ability to incur
indebtedness.
As of January 29, 2011, after giving effect to this
offering we would have had outstanding $895 million of
indebtedness. In addition, we may incur substantial additional
indebtedness in the future. In particular, the notes and
indenture pursuant to which the notes will be issued do not
place any limitation on the amount of unsecured debt that we or
our subsidiaries may incur. Our incurrence of additional debt
may have important consequences for you as a holder of the
notes, including, without limitation:
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we will have additional cash requirements in order to support
the payment of interest on our outstanding indebtedness;
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increases in our outstanding indebtedness and leverage may
increase our vulnerability to adverse changes in general
economic and industry conditions, as well as to competitive
pressure;
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our ability to obtain additional financing for working capital,
capital expenditures, general corporate and other purposes may
be limited; and
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our flexibility in planning for, or reacting to, changes in our
business and our industry may be limited.
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Our
ability to generate sufficient cash depends on numerous factors
beyond our control. If we are unable to generate sufficient cash
flow, we may not be able to service our debt obligations,
including making payments on the notes.
Our ability to make payments of principal and interest on our
indebtedness depends upon our future performance, which will be
subject to general economic conditions, industry cycles and
financial, business and other factors affecting our consolidated
operations, many of which are beyond our control. If we are
unable to generate sufficient cash flow from operations in the
future to service our debt, we may be required, among other
things:
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to seek additional financing in the debt or equity markets;
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to refinance or restructure all or a portion of our
indebtedness, including our senior unsecured 5.00% notes due
July 1, 2014, which we refer to as our 2014 notes, and the
notes;
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to sell selected assets;
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to reduce or delay planned capital expenditures; or
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to reduce or delay planned operating expenditures.
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Such measures might not be sufficient to enable us to service
our debt, including the notes. In addition, any such financing,
refinancing or sale of assets might not be available on
economically favorable terms.
The
notes are effectively subordinated to the existing and future
liabilities of our subsidiaries.
Our equity interest in our subsidiaries is subordinate to any
debt and other liabilities and commitments of our subsidiaries
to the extent of the value of the assets of such subsidiaries,
whether or not secured. The notes will not be guaranteed by our
subsidiaries and we may not have direct access to the assets of
our subsidiaries
S-6
unless such assets are transferred by dividend or otherwise to
us. The ability of our subsidiaries to pay dividends or
otherwise transfer assets to us is subject to various
restrictions under applicable law. Our right to receive assets
of any of our subsidiaries upon their bankruptcy, liquidation or
reorganization, and therefore the right of the holders of the
notes to participate in those assets, will be effectively
subordinated to the claims of such subsidiarys creditors.
In addition, even if we are a creditor of any of our
subsidiaries, our right as a creditor would be subordinate to
any security interest in the assets of our subsidiaries and any
debt of our subsidiaries senior to that held by us.
Our
credit ratings may not reflect all risks of your investment in
the notes.
Any credit ratings assigned to the notes will be limited in
scope, and will not address all material risks relating to an
investment in the notes, but rather reflect only the view of
each rating agency at the time the rating is issued. An
explanation of the significance of such rating may be obtained
from such rating agency. There can be no assurance that such
credit ratings will remain in effect for any given period of
time or that a rating will not be lowered, suspended or
withdrawn entirely by the applicable rating agencies, if, in
such rating agencys judgment, circumstances so warrant.
Agency credit ratings are not a recommendation to buy, sell or
hold any security. Each agencys rating should be evaluated
independently of any other agencys rating. Actual or
anticipated changes or downgrades in our credit ratings,
including any announcement that our ratings are under review for
a downgrade, could affect the market value of the notes and
increase our corporate borrowing costs.
We
expect to repurchase our stock and reduce cash reserves and
shareholders equity that is available for repayment of the
notes.
On November 22, 2010, we announced that our board of directors
authorized the repurchase of an additional $1 billion of
our common stock. As of January 29, 2011, the total amount
available under our repurchase program was approximately
$938 million. Under the repurchase program, we may
repurchase shares of our common stock from time to time in the
open market or in privately negotiated transactions. Our
management may determine the timing and amount of shares
repurchased. In the future, we may purchase additional shares of
our common stock with cash or other of our assets. These
purchases may be significant, and any purchase would reduce cash
and shareholders equity that is available to repay the
notes.
We may
not be able to repurchase all of the notes upon a change of
control triggering event, which would result in a default under
the notes.
We will be required to offer to repurchase the notes and any
outstanding 2014 notes upon the occurrence of a change of
control triggering event as provided in the indentures governing
the notes and the 2014 notes. However, we may not have
sufficient funds to repurchase the notes and our 2014 notes in
cash at such time. In addition, our ability to repurchase the
notes for cash may be limited by law or the terms or other
agreements relating to our indebtedness outstanding at the time.
The failure to make such repurchase would result in a default
under the notes. See Description of Notes
Change of Control Offer.
We
have made only limited covenants in the indenture governing the
notes and these limited covenants may not protect your
investment.
The indenture governing the notes does not:
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require us to maintain any financial ratios or specific levels
of net worth, revenues, income, cash flows or liquidity and,
accordingly, does not protect holders of the notes in the event
that we experience significant adverse changes in our financial
condition or results of operations;
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limit our subsidiaries ability to incur indebtedness which
would effectively rank senior to the notes;
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limit our ability to incur indebtedness that is equal in right
of payment to the notes;
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S-7
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restrict our ability to repurchase our common stock; or
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restrict our ability to make investments or to pay dividends or
make other payments in respect of our common stock or other
securities ranking junior to the notes.
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Furthermore, the indenture governing the notes contains only
limited protections in the event of a change of control
triggering event as described in this prospectus supplement. The
indenture will also permit us and our subsidiaries to incur
additional indebtedness, including secured indebtedness, that
could effectively rank senior to the notes, and to engage in
sale leaseback arrangements, subject to certain limitations.
The
provisions of the notes will not necessarily protect you in the
event of a highly leveraged transaction.
The terms of the notes will not necessarily afford you
protection in the event of a highly leveraged transaction that
may adversely affect you, including a reorganization,
recapitalization, restructuring, merger or other similar
transactions involving us. As a result, we could enter into any
such transaction even though the transaction could increase the
total amount of our outstanding indebtedness, adversely affect
our capital structure or credit rating or otherwise adversely
affect the holders of the notes. These transactions may not
involve a change in voting power or beneficial ownership or
result in a downgrade in the ratings of the notes, or, even if
they do, may not necessarily constitute a change of control
triggering event that affords you the protections described in
this prospectus supplement. If any such transaction should
occur, the value of your notes may decline.
An
active trading market for the notes may not
develop.
The notes constitute a new issue of securities, for which there
is no existing market. We do not intend to apply for listing of
the notes on any securities exchange or for quotation of the
notes in any automated dealer quotation system. We cannot
provide you with any assurance regarding whether a trading
market for the notes will develop, the ability of holders of the
notes to sell their notes or the price at which holders may be
able to sell their notes. The underwriters have advised us that
they currently intend to make a market in the notes. The
underwriters, however, are not obligated to do so, and any
market-making with respect to the notes may be discontinued at
any time without notice. If no active trading market develops,
you may be unable to resell the notes at any price or at their
fair market value.
If a
trading market does develop, changes in our credit ratings or
the debt markets could adversely affect the market price of the
notes.
If a trading market does develop, the price for the notes will
depend on many factors, including:
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our credit ratings with major credit rating agencies;
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the prevailing interest rates being paid by other companies
similar to us;
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our financial condition, financial performance and future
prospects; and
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the overall condition of the financial markets.
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The condition of the financial markets and prevailing interest
rates have fluctuated significantly in the past and are likely
to fluctuate in the future. Such fluctuations could have an
adverse effect on the price of the notes.
In addition, credit rating agencies continually review their
ratings for the companies that they follow, including us. A
negative change in our rating could have an adverse effect on
the price of the notes.
S-8
USE OF
PROCEEDS
We estimate that the net proceeds we will receive from this
offering will be approximately $370.4 million, after
deducting estimated expenses and underwriting discounts and
commissions. We intend to use the net proceeds from this
offering for general corporate purposes, which may include
capital expenditures, repurchases of our common stock under our
stock repurchase program, dividend payments and acquisitions.
Pending application of the net proceeds from the sale of the
notes, we may invest the net proceeds in short-term investments.
S-9
CAPITALIZATION
The following table sets forth our cash, our short-term
investments and our capitalization as of January 29, 2011
on (1) an actual basis and (2) an as adjusted basis to
give effect to the receipt of the estimated net proceeds from
the sale of the notes (after deducting estimated expenses and
underwriting discounts and commissions), but not of any use of
proceeds therefrom.
You should read this in conjunction with our consolidated
financial statements and the notes thereto, which are
incorporated herein by reference.
|
|
|
|
|
|
|
|
|
|
|
As of January 29, 2011
|
|
|
|
Actual
|
|
|
As Adjusted
|
|
|
|
(dollars in thousands)
|
|
|
Cash and cash equivalents
|
|
$
|
1,570,321
|
|
|
$
|
1,940,751
|
|
|
|
|
|
|
|
|
|
|
Short-term investments
|
|
$
|
1,390,795
|
|
|
$
|
1,390,795
|
|
|
|
|
|
|
|
|
|
|
Long-term debt, including current portion:
|
|
|
|
|
|
|
|
|
Term loan facility, maturing December 22, 2013
|
|
$
|
145,000
|
|
|
$
|
145,000
|
|
5.00% notes due July 1, 2014, at par value
|
|
|
375,000
|
|
|
|
375,000
|
|
3.00% notes due April 15, 2016 offered hereby, at par
value
|
|
|
|
|
|
|
375,000
|
|
|
|
|
|
|
|
|
|
|
Total long-term debt
|
|
|
520,000
|
|
|
|
895,000
|
|
Shareholders Equity
|
|
|
|
|
|
|
|
|
Preferred stock, $1.00 par value, 471,934 shares
authorized, none outstanding
|
|
|
|
|
|
|
|
|
Common stock, $0.16 2/3 par value,
1,200,000,000 shares authorized, 299,610,446 shares
issued and outstanding
|
|
|
49,936
|
|
|
|
49,936
|
|
Capital in excess of par value
|
|
|
297,126
|
|
|
|
297,126
|
|
Retained earnings
|
|
|
3,052,862
|
|
|
|
3,052,862
|
|
Accumulated other comprehensive loss
|
|
|
(35,497
|
)
|
|
|
(35,497
|
)
|
|
|
|
|
|
|
|
|
|
Total shareholders equity
|
|
|
3,364,427
|
|
|
|
3,364,427
|
|
|
|
|
|
|
|
|
|
|
Total capitalization
|
|
$
|
3,884,427
|
|
|
$
|
4,259,427
|
|
|
|
|
|
|
|
|
|
|
S-10
DESCRIPTION
OF NOTES
The following discussion of the terms of the notes supplements
the description of the general terms and provisions of the debt
securities contained in the accompanying prospectus and
identifies any general terms and provisions described in the
accompanying prospectus that will not apply to the notes.
Certain terms used but not defined in this prospectus supplement
have the meanings specified in the accompanying prospectus. In
this prospectus supplement, we refer to the 3.00% Notes due
April 15, 2016 as the notes. To the extent this
summary differs from the summary in the accompanying prospectus,
you should rely on the description of notes in this prospectus
supplement.
When we refer to we, our and
us in this section, we mean Analog Devices, Inc.,
the issuer of the notes, excluding, unless the context otherwise
requires or as otherwise expressly stated, our Subsidiaries.
General
The notes will be issued in an initial aggregate principal
amount of $375 million. We will issue the notes under an
indenture dated as of June 30, 2009 between The Bank of New
York Mellon Trust Company, N.A., as trustee, and us (the
base indenture), as supplemented by a supplemental
indenture to be entered into between us and the trustee
(together with the base indenture, the indenture).
You should read the accompanying prospectus for a general
discussion of the terms and provisions of the indenture.
The notes will mature on April 15, 2016. The notes will not
be listed on any securities exchange or quoted on any automated
quotation system.
The notes will be issued only in registered form without
coupons, in denominations of $2,000 and integral multiples of
$1,000 in excess thereof. The notes will be available in
book-entry form only. No service charge will be made for any
registration of transfer or any exchange of notes, but we may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith.
Ranking
The notes will be our senior unsecured obligations and will rank
equally with all of our other existing and future senior
unsecured indebtedness, including our senior unsecured
5.00% notes due July 1, 2014 (the 2014
notes). The notes will be effectively subordinated to all
of our future secured indebtedness to the extent of the assets
securing that indebtedness. In addition, the notes will be
structurally subordinated to all existing and future
indebtedness and other liabilities and commitments of our
Subsidiaries to the extent of the assets of such Subsidiaries,
which are distinct legal entities having no obligation to pay
any amounts pursuant to the notes or to make funds available for
such purposes.
Subsidiary means any corporation, association
or other business entity of which more than 50% of the total
voting power of all shares, interests, participations, rights or
other equivalents (however designated) of corporate 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 us or one or more of our other Subsidiaries or a
combination thereof.
Interest
The notes will bear interest at a rate of 3.00% per year from
April 4, 2011 or from the most recent interest payment date
on which we paid or provided for interest on the notes. The
interest payment dates for the notes will be each April 15
and October 15, beginning October 15, 2011 and
interest will be payable to the holders of record on
April 1 and October 1 immediately preceding the
related interest payment date. Interest on the notes will be
computed on the basis of a
360-day year
comprised of twelve
30-day
months.
If any interest payment date, date of redemption or the maturity
date of the notes is not a business day, then payment of
interest
and/or
principal will be made on the next succeeding business day, and
no additional interest will accrue on the amount so payable for
that period.
S-11
Optional
Redemption
The notes are redeemable at our option, at any time or from time
to time, either in whole or in part, at a redemption price equal
to the greater of the following amounts, plus, in each case,
accrued and unpaid interest thereon to the redemption date:
(i) 100% of the principal amount of the notes to be
redeemed; and
(ii) the sum of the present values of the Remaining
Scheduled Payments.
In determining the present values of the Remaining Scheduled
Payments, such payments shall be discounted to the redemption
date on a semi-annual basis (assuming a
360-day year
consisting of twelve
30-day
months) using a discount rate equal to the Treasury Rate plus
15 basis points.
Comparable Treasury Issue means the United
States Treasury security selected by the Quotation Agent as
having an actual or interpolated maturity comparable to the
remaining term of the notes to be redeemed that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of
such notes.
Comparable Treasury Price means, with respect
to any redemption date the arithmetic average of all Reference
Treasury Dealer Quotations for such redemption date or, if the
Quotation Agent obtains only one Reference Treasury Dealer
Quotation, such Reference Treasury Dealer Quotation.
Quotation Agent means the Reference Treasury
Dealer selected by us.
Reference Treasury Dealer means each of
Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce,
Fenner & Smith Incorporated (or their respective
successors) and any other primary U.S. Government
securities dealer in New York City (a primary treasury
dealer) selected by the Quotation Agent after consultation
with us, provided that if any of the foregoing shall cease to be
a primary treasury dealer, another primary treasury dealer shall
be substituted therefor by us.
Reference Treasury Dealer Quotation means,
with respect to each Reference Treasury Dealer and any
redemption date, the arithmetic average, as determined by the
Quotation Agent, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Quotation Agent by
such Reference Treasury Dealer at 5:00 p.m. on the third
business day preceding such redemption date.
Remaining Scheduled Payments means, with
respect to any note being redeemed, the remaining scheduled
payments of the principal and interest thereon that would be due
after the related redemption date but for such redemption;
provided, however, that, if such redemption date is not an
interest payment date with respect to such note, the amount of
the next scheduled interest payment thereon shall be reduced by
the amount of interest accrued thereon to such redemption date.
Treasury Rate means, with respect to any
redemption date, the rate per annum equal to the semi-annual
equivalent yield to maturity or interpolated yield to maturity
of the Comparable Treasury Issue. In determining this rate, the
price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) shall be assumed to be equal
to the Comparable Treasury Price for such redemption date.
A partial redemption of the notes may be effected by such method
as the trustee shall deem fair and appropriate and may provide
for the selection for redemption of a portion of the principal
amount of the notes equal to an authorized denomination.
Notice of any redemption shall be mailed at least 15 days
but not more than 60 days before the redemption date to
each Holder of the notes to be redeemed.
Unless we default in payment of the redemption price, on and
after the redemption date interest shall cease to accrue on the
notes or portions thereof that are called for redemption.
S-12
Change of
Control Offer
If a Change of Control Triggering Event occurs, unless we have
exercised our option to redeem the notes or have defeased the
notes or satisfied and discharged the notes, we shall be
required to make an offer (a Change of Control
Offer) to each Holder of the notes to repurchase all or
any part (equal to $2,000 and in integral multiples of $1,000 in
excess thereof) of that Holders notes pursuant to the
offer described below. In a Change of Control Offer, we will be
required to offer payment in cash equal to 101% of the aggregate
principal amount of notes repurchased, plus accrued and unpaid
interest, if any, on the notes repurchased to the date of
repurchase (a Change of Control Payment). Within
30 days following any Change of Control Triggering Event
or, at our option, prior to any Change of Control, but after
public announcement of the transaction that constitutes or may
constitute the Change of Control, a notice shall be mailed to
Holders of the notes describing the transaction that constitutes
or may constitute the Change of Control Triggering Event and
offering to repurchase such notes on the date specified in the
notice, which date shall be no earlier than 30 days and no
later than 60 days from the date such notice is mailed (a
Change of Control Payment Date). The notice shall,
if mailed prior to the date of consummation of the Change of
Control, state that the offer to purchase is conditioned on the
Change of Control Triggering Event occurring on or prior to the
Change of Control Payment Date.
On the Change of Control Payment Date, we will, to the extent
lawful:
(i) accept for payment all notes or portions of such notes
properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all notes or portions of
such notes properly tendered; and
(iii) 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 such notes being repurchased.
We will not be required to make a Change of Control Offer upon
the occurrence of a Change of Control Triggering Event if a
third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made
by us and the third party purchases all notes properly tendered
and not withdrawn under its offer.
We will comply with the requirements of
Rule 14e-1
under the Securities Exchange Act of 1934, as amended (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 shall 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 are applicable:
Below Investment Grade Rating Event means the
notes are downgraded below Investment Grade by both Rating
Agencies on any date during the period (the Trigger
Period) commencing 60 days prior to the first public
announcement by us of any Change of Control (or pending Change
of Control) and ending 60 days following the consummation
of such Change of Control (which Trigger Period will be extended
if the rating of the notes is under publicly announced
consideration for possible downgrade by any Rating Agency on
such 60th day, such extension to last with respect to each
Rating Agency until the date on which such Rating Agency
considering such possible downgrade either (x) rates the
notes below Investment Grade or (y) publicly announces that
it is no longer considering the notes for possible downgrade,
provided that no such extension will occur if on such
60th day the notes are rated Investment Grade by both
Rating Agencies and are not subject to review for possible
downgrade by either Rating Agency).
Change of Control means the occurrence of any
of the following: (1) 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,
S-13
to any person, other than to our company or one of our direct or
indirect Subsidiaries; (2) the consummation of any
transaction (including, without limitation, any merger or
consolidation) the result of which is that any person becomes
the beneficial owner (as defined in
Rules 13d-3
and 13d-5
under the Exchange Act), directly or indirectly, of more than
50% of our outstanding Voting Stock or other Voting Stock into
which our Voting Stock is reclassified, consolidated, exchanged
or changed, measured by voting power rather than number of
shares; (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 any such transaction where the shares
of our Voting Stock outstanding immediately prior to such
transaction constitute, or are converted into or exchanged for,
a majority of the outstanding Voting Stock of the surviving
person or any direct or indirect parent company of the surviving
person immediately after giving effect to such transaction
measured by voting power rather than number of shares;
(4) the first day on which a majority of the members of our
Board of Directors are not Continuing Directors; or (5) the
adoption of a plan providing for our liquidation or dissolution.
Notwithstanding the foregoing, a transaction will not be deemed
to involve a Change of Control if (1) we become a direct or
indirect wholly owned subsidiary of a holding company (which
shall include a parent company) and (2)(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. The term person, as used in
this definition, has the meaning given thereto in
Section 13(d)(3) of the Exchange Act.
Holders may not be entitled to require us to purchase their
notes in certain circumstances involving a significant change in
the composition of our Board of Directors, including in
connection with a proxy contest, where our Board of Directors
initially publicly opposes the election of a dissident slate of
directors, but subsequently approves such directors as
continuing directors for purposes of the indenture. This may
result in a change in the composition of the Board of Directors
that, but for such subsequent approval, would have otherwise
constituted a Change of Control requiring a repurchase offer for
the notes.
The definition of Change of Control includes a
phrase relating to the direct or indirect sale, transfer,
conveyance or other disposition of all or substantially
all of our properties or assets and those of our
Subsidiaries taken as a whole. There is no precise established
definition of the phrase substantially all under
applicable law. Accordingly, the ability of a holder of notes to
require us to repurchase the notes as a result of a sale,
transfer, conveyance or other disposition of less than all of
our properties or assets and those of our Subsidiaries taken as
a whole to another person may be uncertain. In such case, the
holders of the notes may not be able to resolve this uncertainly
without resorting to legal action.
Change of Control Triggering Event means the
occurrence of both a Change of Control and a Below Investment
Grade Rating Event.
Continuing Directors means, as of any date of
determination, any member of our Board of Directors who
(1) was a member of such Board of Directors on the date the
notes were issued or (2) was nominated for election,
elected or appointed to such Board of Directors with the
approval of a majority of the Continuing Directors who were
members of such Board of Directors at the time of such
nomination, election or appointment (either by a specific vote
or by approval of our proxy statement in which such member was
named as a nominee for election as a director, without objection
to such nomination).
Investment Grade means having a rating equal
to or higher than Baa3 (or the equivalent) by Moodys and
BBB- (or the equivalent) by S&P.
Moodys means Moodys Investors
Service, Inc., and its successors.
Rating Agencies means each of Moodys
and S&P; provided, that if either of Moodys and
S&P ceases to provide rating services to issuers or
investors, we may appoint a replacement for such Rating Agency
that is a nationally recognized statistical rating
organization within the meaning of
Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act.
S-14
S&P means Standard &
Poors Rating Services, a division of The McGraw-Hill
Companies, Inc., and its successors.
Voting Stock means, with respect to any
specified person (as that term is used in
Section 13(d)(3) of the Exchange Act) as of any date, the
capital stock of such person that is at the time entitled to
vote generally in the election of the board of directors of such
person.
Limitation
on Liens
We will not, nor will we permit any Subsidiary to, issue, incur,
create, assume or guarantee (collectively, incur)
any debt for borrowed money, including all obligations evidenced
by bonds, debentures, notes or similar instruments
(collectively, a debt), secured by a mortgage, deed
of trust, security interest, pledge, lien, charge or other
encumbrance (collectively, a lien) upon any
Principal Property or upon any shares of stock of any Principal
Subsidiary (whether such Principal Property or shares are now
existing or owed or hereafter created or acquired) without in
any such case effectively providing, substantially concurrently
with or prior to the creation or assumption of such lien, that
the notes (together with, if we shall so determine, any other
indebtedness of or guarantee by us or such Subsidiary ranking
equally with the notes) shall be secured equally and ratably
with (or, at our option, prior to) such secured debt. The
foregoing restriction, however, will not apply to each of the
following:
(a) liens on property, shares of stock or other assets of
any person existing at the time such person becomes a Subsidiary
or existing at the time of acquisition thereof by us or a
Subsidiary, provided that such liens are not incurred in
anticipation of such persons becoming a Subsidiary or such
acquisition and do not extend to (i) any Principal Property
or (ii) any shares of stock of any Principal Subsidiary
that, in each case, were not previously encumbered by such liens;
(b) liens on property of a person existing at the time such
person is merged into or consolidated with us or a Subsidiary of
ours or at the time of a sale, lease or other disposition of the
properties of such person (or a division thereof) as an entirety
or substantially as an entirety to us or a Subsidiary, provided
that such liens are not incurred in anticipation of such merger
or consolidation or sale, lease or other disposition and do not
extend to (i) any Principal Property or (ii) any
shares of stock of any Principal Subsidiary that, in each case,
were not previously encumbered by such liens;
(c) liens to secure all or part of the cost of acquisition,
construction, development or improvement of any property or to
secure debt incurred to provide funds for any such purpose
(including purchase money security interests or purchase money
mortgages), provided that the commitment of the creditor to
extend the credit secured by any such lien is obtained not later
than 24 months after the later of (i) the completion
of acquisition, construction, development or improvement of such
property and (ii) the placing in operation of such property
or of such property as so constructed, developed or improved;
(d) liens in favor of, or which secure debt owing to, us or
any of our Subsidiaries;
(e) liens existing at the date of the issuance of the notes;
(f) liens in favor of the United States of America or any
state, territory or possession thereof (or the District of
Columbia), or any department, agency, instrumentality or
political subdivision of the United States of America or any
state, territory or possession thereof (or the District of
Columbia), to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of constructing or
improving the property subject to such liens;
(g) liens incurred or assumed in connection with the
issuance of revenue bonds the interest on which is exempt from
federal taxation pursuant to Section 103(b) of the Internal
Revenue Code; and
(h) extensions, renewals or replacements of any liens
referred to in the foregoing clauses, provided that (i) the
principal amount of debt secured thereby shall not exceed the
principal amount of debt so secured at the time of such
extension, renewal or replacement and (ii) such extension,
renewal or replacement liens will be limited
S-15
to all or part of the same property and improvement thereon
which secured the debt so secured at the time of such extension,
renewal or replacement.
Notwithstanding the restrictions in the preceding paragraphs, we
or any Subsidiary of ours may incur debt secured by a lien which
would otherwise be subject to such restrictions, without equally
and ratably securing the notes, provided that, after giving
effect thereto, the aggregate amount of all such debt so secured
by such liens (not including liens permitted under
clauses (a) through (h) above) plus the aggregate
amount of Attributable Debt in respect of Sale and Lease-Back
Transactions of Principal Properties entered into after the date
of issuance of the notes and permitted solely pursuant to
clause (c) of the covenant described below under the
caption Limitation on Sale and Lease-Back
Transactions and still in existence does not exceed the
greater of 15% of our Consolidated Net Tangible Assets at the
time of such incurrence and $350 million.
Limitation
on Sale and Lease-Back Transactions
We will not, nor will we permit any Subsidiary to, enter into
any Sale and Lease-Back Transaction with respect to any
Principal Property, other than any such Sale and Lease-Back
Transaction involving a lease for a term of not more than three
years or any such Sale and Lease-Back Transaction between us and
one of our Subsidiaries, or between Subsidiaries, unless:
(a) we or such Subsidiary would be entitled to incur debt
secured by a lien on the Principal Property involved in such
Sale and Lease-Back Transaction at least equal in amount to the
Attributable Debt with respect to such Sale and Lease-Back
Transaction, without equally and ratably securing the notes,
pursuant to clauses (a) through (h) of the covenant
described above under the caption Limitation
on Liens;
(b) we apply the Net Available Proceeds of such Sale and
Lease-Back Transaction within 180 days of such Sale and
Lease-Back Transaction to either (or a combination of)
(i) the prepayment or retirement of debt of ours or a
Subsidiary of ours (other than debt that is, in the case of our
debt, subordinated to the notes or debt owed to us or a
Subsidiary) that by its terms matures more than 12 months
after its creation or (ii) the purchase, construction,
development, expansion or improvement of comparable properties
or facilities; or
(c) the aggregate amount of Attributable Debt in respect of
such Sale and Lease-Back Transaction plus the Attributable Debt
in respect of all other Sale and Lease-Back Transactions of
Principal Properties entered into after the date of issuance of
the notes permitted solely pursuant to this clause (c) and
still in existence, plus the aggregate amount of all debt
secured by liens permitted solely pursuant to the last paragraph
of the covenant described above under the caption
Limitation on Liens and still
outstanding, does not exceed the greater of 15% of our
Consolidated Net Tangible Assets at the time of such Sale and
Lease-Back Transaction and $350 million.
Attributable Debt with regard to a Sale and
Lease-Back Transaction with respect to any Principal Property
means, at the time of determination, the lesser of:
|
|
|
|
|
the fair market value of the Principal Property subject to the
transaction; or
|
|
|
|
the present value (discounted by the weighted average interest
rate borne by all securities then outstanding under the
indenture at the time of determination compounded semiannually)
of the total obligations of the lessee for rental payments
(other than amounts required to be paid on account of property
taxes as well as maintenance, repairs, insurance, water rates
and other items which do not constitute payments for property
rights) during the remaining portion of the base term of the
lease included in such Sale and Lease-Back Transaction.
|
Consolidated Net Tangible Assets means, as of
any date on which we effect a transaction requiring such
Consolidated Net Tangible Assets to be measured hereunder, the
aggregate amount of assets (less applicable reserves) after
deducting therefrom (i) all current liabilities, except for
any notes and loans payable, current maturities of long-term
debt, the current portion of deferred revenue and obligations
under capital leases and (ii) all goodwill, trade names,
patents, unamortized debt discount and expense and any other
like intangibles, to the extent included in said aggregate
amount of assets, all as set forth on our most recent
consolidated balance sheet and computed in accordance with GAAP.
S-16
GAAP means accounting principles generally
accepted in the United States of America set forth in the
opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board or in such other statements 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 the
determination.
Net Available Proceeds from any Sale and
Lease-Back Transaction by us or any Subsidiary means cash or
readily marketable cash equivalents received (including by way
of sale or discounting of a note, installment receivable or
other receivable, but excluding any other consideration received
in the form of assumption by the acquiree of debt or obligations
relating to the properties or assets that are the subject of
such Sale and Lease-Back Transaction or received in any other
noncash form) therefrom by us or our Subsidiary, net of
(i) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred and all
Federal, state, provincial, foreign and local taxes required to
be accrued as a liability as a consequence of such Sale and
Lease-Back Transaction; (ii) all payments made by us or our
Subsidiary on any debt which is secured in whole or in part by
any such properties and assets in accordance with the terms of
any lien upon or with respect to any such properties and assets
or which must, by the terms of such lien, or in order to obtain
a necessary consent to such Sale and Lease-Back Transaction or
by applicable law, be repaid out of the proceeds from such Sale
and Lease-Back Transaction; and (iii) all distributions and
other payments made to our minority interest holders in
Subsidiaries or joint ventures as a result of such Sale and
Lease-Back Transaction.
Principal Property means any single parcel of
real property or any permanent improvement thereon
(i) owned by us or any of our Subsidiaries located in the
United States, including our principal corporate office, any
manufacturing facility or plant or any portion thereof and
(ii) having a book value, as of the date of determination,
in excess of 3% of our most recently calculated Consolidated Net
Tangible Assets. Principal Property does not include any
property that our board of directors has determined not to be of
material importance to the business conducted by our
Subsidiaries and us, taken as a whole.
Principal Subsidiary means any Subsidiary
which owns any Principal Property.
Sale and Lease-Back Transaction means an
arrangement with any lender or investor or to which such lender
or investor is a party providing for the leasing by us or any of
our Subsidiaries of any Principal Property that, more than
12 months after the later of (i) the completion of the
acquisition, construction, development or improvement of such
Principal Property or (ii) the placing in operation of such
Principal Property or of such Principal Property as so
constructed, developed or improved, has been or is being sold,
conveyed, transferred or otherwise disposed of by us or our
Subsidiary to such lender or investor or to any person to whom
funds have been or are to be advanced by such lender on the
security of such Principal Property.
Limitation
on Mergers and Other Transactions
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 (a successor person) unless:
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we are the surviving corporation or the successor person (if
other than us) is a corporation organized and validly existing
under the laws of any U.S. domestic jurisdiction and
expressly assumes our obligations on the debt securities and
under the indenture;
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immediately after giving effect to the transaction, no Event of
Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and
be continuing under the indenture; and
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certain other conditions are met.
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Notwithstanding the above, any Subsidiary of ours may
consolidate with, merge into or transfer all or part of its
properties to us.
S-17
Events of
Default
Any of the following constitutes an Event of Default with
respect to the notes:
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default in the payment of any interest on the notes when it
becomes due and payable, and continuance of that default for a
period of 30 days;
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default in the payment of principal of or premium on the notes
when due and payable;
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default in the performance or breach of any other covenant by us
in the indenture (other than a covenant that has been included
in the indenture solely for the benefit of a series of debt
securities other than the 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 25% in principal amount
of the outstanding notes as provided in the indenture;
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(1) our failure or the failure of any of our Subsidiaries
to pay indebtedness for money we borrowed or any of our
Subsidiaries borrowed in an aggregate principal amount of at
least $100 million, at the later of final maturity and the
expiration of any related applicable grace period and such
defaulted payment shall not have been made, waived or extended
within 30 days after written notice from the trustee or the
holders of at least 25% in principal amount of the outstanding
notes or (2) acceleration of the maturity of indebtedness
for money we borrowed or any of our subsidiaries borrowed in an
aggregate principal amount of at least $100 million, if
that acceleration results from a default under the instrument
giving rise to or securing such indebtedness for money borrowed
and such indebtedness has not been discharged in full or such
acceleration has not be rescinded or annulled within
30 days after written notice from the trustee or the
holders of at least 25% in principal amount of the outstanding
notes; and
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certain events of bankruptcy, insolvency or reorganization
involving us.
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Defeasance
and Discharge
The notes are also subject to defeasance and discharge as
described under the heading Defeasance of Debt Securities
and Certain Covenants in Certain Circumstances and
Satisfaction and Discharge Prior to Maturity in the
accompanying prospectus.
Delivery
and Form
The notes will be represented by one or more permanent global
certificates (each a Global Note and collectively,
the Global Notes) deposited with, or on behalf of,
The Depository Trust Company (DTC) and
registered in the name of Cede & Co. (DTCs
partnership nominee). Unless and until certificated notes are
issued under the limited circumstances described in the
accompanying prospectus, no beneficial owner of a note shall be
entitled to receive a definitive certificate representing notes.
So long as DTC or any successor depositary (collectively, the
Depositary) or its nominee is the registered owner
of the Global Notes, the Depositary, or such nominee, as the
case may be, will be considered to be the sole owner or holder
of the notes for all purposes of the indenture. Beneficial
interests in the Global Notes will be represented through
book-entry accounts of financial institutions acting on behalf
of beneficial owners as direct and indirect participants in DTC.
Investors may elect to hold interests in the Global Notes
through DTC either directly if they are participants in DTC or
indirectly through organizations that are participants in DTC.
Clearance
and Settlement Procedures
Initial settlement for the notes will be made in immediately
available funds. 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.
S-18
MATERIAL
UNITED STATES FEDERAL TAX CONSEQUENCES
The following is a summary of certain material U.S. federal
income and estate tax considerations related to the purchase,
ownership and disposition of the notes. This summary is based
upon provisions of the Internal Revenue Code of 1986, as amended
(the Code), applicable regulations, administrative
rulings and judicial decisions in effect as of the date of this
prospectus supplement, any of which may subsequently be changed,
possibly retroactively, or interpreted differently by the
Internal Revenue Service (the IRS), so as to result
in U.S. federal income and estate tax consequences
different from those discussed below. Except where noted, this
summary deals only with notes held as capital assets within the
meaning of Section 1221 of the Code (generally for
investment purposes) by a beneficial owner who purchases notes
on original issuance at the initial offering price at which a
substantial amount of the notes are sold for cash to persons
other than bond houses, brokers, or similar persons or
organizations acting in the capacity of underwriters, placement
agents or wholesalers, which we refer to as the issue
price. This summary does not address all aspects of
U.S. federal income and estate taxes related to the
purchase, ownership and disposition of the notes and does not
address all tax consequences that may be relevant to holders in
light of their personal circumstances or particular situations,
such as:
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tax consequences to holders who may be subject to special tax
treatment, including dealers in securities or currencies, banks
and other financial institutions, regulated investment
companies, real estate investment trusts, tax-exempt entities,
insurance companies and traders in securities that elect to use
a
mark-to-market
method of accounting for their securities;
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tax consequences to persons holding notes as a part of a
hedging, integrated, conversion or constructive sale transaction
or a straddle;
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tax consequences to U.S. holders (as defined below) of
notes whose functional currency is not the
U.S. dollar;
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tax consequences to partnerships or other pass-through entities
and their members;
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tax consequences to certain former citizens or residents of the
United States;
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U.S. federal alternative minimum tax consequences, if any;
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any state, local or foreign tax consequences; and
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U.S. federal estate or gift taxes, if any, except as set
forth below with respect to
non-U.S. holders.
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If a partnership (including any entity or arrangement treated as
a partnership for U.S. federal income tax purposes) holds
notes, the tax treatment of a partner will generally depend upon
the status of the partner and the activities of the partnership.
A beneficial owner that is a partnership and partners in such a
partnership should consult their tax advisors.
THIS SUMMARY OF MATERIAL UNITED STATES FEDERAL INCOME AND
ESTATE TAX CONSIDERATIONS IS FOR GENERAL INFORMATION ONLY AND IS
NOT TAX ADVICE FOR ANY PARTICULAR INVESTOR. THIS SUMMARY DOES
NOT ADDRESS THE TAX CONSIDERATIONS ARISING UNDER THE LAWS OF ANY
FOREIGN, STATE OR LOCAL JURISDICTION. IF YOU ARE CONSIDERING THE
PURCHASE OF NOTES, YOU SHOULD CONSULT YOUR TAX ADVISORS
CONCERNING THE U.S. FEDERAL INCOME AND ESTATE TAX
CONSEQUENCES TO YOU IN LIGHT OF YOUR OWN SPECIFIC SITUATION, AS
WELL AS CONSEQUENCES ARISING UNDER THE LAWS OF ANY OTHER TAXING
JURISDICTION.
In this discussion, we use the term U.S. holder
to refer to a beneficial owner of notes that is, for
U.S. federal income tax purposes:
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an individual citizen or resident of the United States;
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a corporation (or any other entity or arrangement treated as a
corporation for U.S. federal income tax purposes) created
or organized in or under the laws of the United States, any
state thereof or the District of Columbia;
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S-19
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an estate the income of which is subject to U.S. federal
income taxation regardless of its source; or
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a trust, if it (i) is subject to the primary supervision of
a court within the U.S. and one or more U.S. persons
have the authority to control all substantial decisions of the
trust, or (ii) has a valid election in effect under
applicable U.S. Treasury regulations to be treated as a
U.S. person.
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We use the term
non-U.S. holder
to describe a beneficial owner (other than a partnership or
other pass-through entity) of notes that is not a
U.S. holder.
Non-U.S. holders
should consult their tax advisors to determine the
U.S. federal, state, local and other tax consequences that
may be relevant to them.
Consequences
to U.S. Holders
Payments
of Interest
Subject to the discussion below under Additional
Payments, it is anticipated, and this discussion assumes,
that the notes will be issued with no more than a de minimis
amount of original issue discount for U.S. federal
income tax purposes, in which case interest on a note generally
will be taxable to a U.S. holder as ordinary income at the
time it is received or accrued in accordance with the
U.S. holders usual method of accounting for tax
purposes. If, however, the issue price of the notes is less than
their stated principal amount and the difference is more than a
de minimis amount (as set forth in the applicable
U.S. Treasury Regulations), a U.S. holder will be
required to include the difference in income as original issue
discount as it accrues in accordance with a constant yield
method.
Additional
Payments
In certain circumstances, we may be obligated to pay amounts in
excess of stated interest or principal on the notes. For
example, if we are required to repurchase notes in connection
with a Change of Control Triggering Event as described in
Description of Notes Change of Control
Offer, we must pay a 1% premium. In addition, we may
redeem the notes at any time, and upon such a redemption we may
be required to pay amounts in excess of accrued interest and
principal on the notes as described in Description of
Notes Optional Redemption. The possibility of
such payments may implicate special rules under
U.S. Treasury Regulations governing contingent
payment debt instruments. According to those regulations,
the possibility that additional payments will be made will not
cause the notes to be contingent payment debt instruments if, as
of the date the notes are issued, there is only a remote chance
that such payments will be made, the amount of such payments is
incidental or certain other exceptions apply. We believe that
the likelihood that we will be obligated to repurchase the notes
upon a change of control and pay the 1% premium is remote
and/or that
the 1% premium is incidental. Therefore, we do not intend to
treat the potential payment of these amounts as subjecting the
notes to the contingent payment debt rules. Under current
U.S. Treasury Regulations, the optional redemption at a
potential premium does not cause the notes to be subject to the
contingent payment debt rules because such a redemption would
increase the yield on the notes and therefore is deemed not to
be exercised by us.
Therefore, we have determined (and the remainder of this
discussion assumes) that the notes are not contingent payment
debt instruments. Our determination is binding on
U.S. holders unless they disclose their contrary positions
to the IRS in the manner required by applicable
U.S. Treasury Regulations. Our determination that the notes
are not contingent payment debt instruments is not, however,
binding on the IRS. If the IRS were to successfully challenge
our determination and the notes were treated as contingent
payment debt instruments, U.S. holders would be required,
among other things, to (i) accrue interest income based on
a projected payment schedule and comparable yield, which may be
a higher rate than the stated interest rate on the notes,
regardless of their method of tax accounting and (ii) treat
as ordinary income, rather than capital gain, any gain
recognized on a sale, exchange or redemption of a note. In the
event that any of the above contingencies were to occur, it
would affect the amount and timing of the income recognized by a
U.S. holder. If any additional payments are in fact made,
U.S. holders will be required to recognize such amounts as
income.
Sale,
Redemption or Other Taxable Disposition of Notes
A U.S. holder generally will recognize gain or loss upon
the sale, redemption or other taxable disposition of a note
(including a deemed exchange described below under
Satisfaction and Discharge) equal to the
S-20
difference between the amount realized (except to the extent any
amount realized is attributable to accrued but unpaid interest,
which will be taxable as ordinary interest income to the extent
not previously included in income) and such
U.S. holders adjusted tax basis in the note. A
U.S. holders tax basis in a note will generally be
equal to the amount that such U.S. holder paid for the
note. In general, any gain or loss recognized on a taxable
disposition of the note will be capital gain or loss. If, at the
time of the sale, redemption or other taxable disposition of the
note, a U.S. holder is treated as holding the note for more
than one year, such capital gain or loss will be a long-term
capital gain or loss. Otherwise, such capital gain or loss will
be a short-term capital gain or loss. In the case of certain
non-corporate U.S. holders (including individuals),
long-term capital gain generally is subject to U.S. federal
income tax at a lower rate than short-term capital gain, which
is taxed at ordinary income rates. A U.S. holders
ability to deduct capital losses may be limited.
Assumption
of our Obligations under the Notes
Under certain circumstances described under the heading
Description of Debt Securities Limitation on
Mergers and Other Transactions, our obligations under the
notes and the indenture may be assumed by another person. An
assumption by another person of our obligations under the notes
and the indenture might be deemed for U.S. federal income
tax purposes to be an exchange by a holder of the notes for new
notes, resulting in recognition of gain or loss for such
purposes and possibly other adverse tax consequences to the
holder. Holders should consult their tax advisors regarding the
tax consequences of such an assumption.
Satisfaction
and Discharge
If we were to obtain a discharge of our obligations under the
notes, as described under Description of Debt
Securities Satisfaction and Discharge Prior to
Maturity in the accompanying prospectus, it is likely that
such discharge would be deemed to constitute a taxable exchange
of the notes for other property. In such case, a
U.S. holder would be required to recognize gain or loss in
connection with such deemed exchange. In addition, after such
deemed exchange, a U.S. holder also might be required to
recognize income from the property deemed to have been received
in such exchange over the remaining life of the transaction in a
manner or amount that is different than if the discharge had not
occurred. U.S. holders should consult their tax advisors as
to the specific consequences arising from a discharge in their
particular situations.
Information
Reporting and Backup Withholding
Information reporting requirements generally will apply to
payments of interest on the notes and to the proceeds of a sale
of a note paid to a U.S. holder unless the U.S. holder
is an exempt recipient. Backup withholding at the applicable
rate will apply to those payments if the U.S. holder fails
to provide its correct taxpayer identification number, fails to
provide certification of exempt status, or is notified by the
IRS that the U.S. holder has failed to report in full
payments of interest and dividend income. Backup withholding is
not an additional tax. Any amounts withheld under the backup
withholding rules will be allowed as a refund or a credit
against a U.S. holders U.S. federal income tax
liability, provided the required information is timely furnished
to the IRS.
Consequences
to Non-U.S.
Holders
Payments
of Interest
In general, payments of interest on the notes to, or on behalf
of, a
non-U.S. holder
will be considered portfolio interest and, subject
to the discussions below of income effectively connected with a
U.S. trade or business and backup withholding, will not be
subject to U.S. federal income or withholding tax, provided
that:
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the
non-U.S. holder
does not actually or constructively own 10% or more of the total
combined voting power of all classes of our stock entitled to
vote within the meaning of Section 871(h)(3) of the Code;
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the
non-U.S. holder
is not, for U.S. federal income tax purposes, a controlled
foreign corporation that is related (actually or constructively)
to us through stock ownership;
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S-21
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the
non-U.S. holder
is not a bank whose receipt of interest on a note is described
in Section 881(c)(3)(A) of the Code; and
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either (a) the
non-U.S. holder
provides its name, address and taxpayer identification number,
if any, and certifies, under penalties of perjury, that it is
not a U.S. person (which certification may be made on an
IRS
Form W-8BEN
or other applicable form) or (b) the
non-U.S. holder
holds the notes through certain foreign intermediaries or
certain foreign partnerships, and the
non-U.S. holder
and the foreign intermediary or foreign partnership satisfies
the certification requirements of applicable U.S. Treasury
Regulations. Special certification rules apply to
non-U.S. holders
that are pass-through entities.
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If a
non-U.S. holder
cannot satisfy the requirements described above, payments of
interest generally will be subject to the 30% U.S. federal
withholding tax, unless the
non-U.S. holder
provides us with a properly executed (i) IRS
Form W-8BEN
(or other applicable form) claiming an exemption from or
reduction in withholding under the benefit of an applicable
income tax treaty or (ii) IRS
Form W-8ECI
(or other applicable form) stating that interest paid on the
notes is not subject to withholding tax because it is
effectively connected with the
non-U.S. holders
conduct of a trade or business in the United States and
includable in the
non-U.S. holders
gross income.
If a
non-U.S. holder
is engaged in a trade or business in the United States and
interest on the notes is effectively connected with the conduct
of that trade or business and, if required by an applicable
income tax treaty, is attributable to a U.S. permanent
establishment, then, although the
non-U.S. holder
will be exempt from the 30% withholding tax (provided the
certification requirements discussed above are satisfied), the
non-U.S. holder
will be subject to U.S. federal income tax on that interest
on a net income basis under regular graduated U.S. federal
income tax rates and generally in the same manner as if the
non-U.S. holder
were a U.S. holder. In addition, if a
non-U.S. holder
is a foreign corporation it may be subject to a branch profits
tax equal to 30% (or lesser rate under an applicable income tax
treaty) of its effectively connected earnings and profits for
the taxable year, subject to certain adjustments.
Sale,
Redemption or Other Taxable Disposition of Notes
Gain realized by a
non-U.S. holder
on the sale, redemption or other taxable disposition of a note
(including a deemed exchange described below under
Satisfaction and Discharge) will not be subject to
U.S. income tax unless:
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that gain is effectively connected with the
non-U.S. holders
conduct of a trade or business in the United States (and, if
required by an applicable income treaty, is attributable to a
U.S. permanent establishment); or
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the
non-U.S. holder
is an individual who is present in the United States for
183 days or more in the taxable year of that disposition
and certain other conditions are met.
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If a
non-U.S. holder
is described in the first bullet point above, it will be subject
to tax on the net gain derived from the sale, redemption or
other taxable disposition of the notes under regular graduated
U.S. federal income tax rates and generally in the same
manner as if the
non-U.S. holder
were a U.S. holder. In addition, if a
non-U.S. holder
is a foreign corporation, it may be subject to the branch
profits tax equal to 30% (or lesser rate under an applicable
income tax treaty) of its effectively connected earnings and
profits for the taxable year, subject to certain adjustments. If
a
non-U.S. holder
is an individual described in the second bullet point above,
such holder will be subject to a flat 30% tax on the gain
derived from the sale, redemption or other taxable disposition,
which may be offset by certain U.S. source capital losses,
even though such holder is not considered a resident of the
United States.
Satisfaction
and Discharge
As described above under Consequences to
U.S. Holders Satisfaction and Discharge,
a
non-U.S. holder
may be required to recognize gain or loss that is subject to tax
as described above in Consequences to
Non-U.S. Holders
Sale, Redemption or Other Taxable Disposition of Notes and
also may be required to
S-22
recognize income with respect to the property deemed to have
been received in such exchange over the remaining life of the
transaction in a manner or an amount that is different than if
the discharge had not occurred, and such income may be subject
to U.S. income
and/or
withholding taxes.
Non-U.S. holders
should consult their tax advisors as to the specific
consequences arising from a discharge in their particular
situations.
Information
Reporting and Backup Withholding
Generally, we must report annually to the IRS and to
non-U.S. holders
the amount of interest paid to
non-U.S. holders
and the amount of tax, if any, withheld with respect to those
payments. Copies of the information returns reporting such
interest payments and withholding may also be made available to
the tax authorities in the country in which a
non-U.S. holder
resides under the provisions of an applicable income tax treaty.
In general, a
non-U.S. holder
will not be subject to backup withholding with respect to
payments of interest that we make, provided the statement
described above in the last bullet point under
Consequences to
Non-U.S. Holders
Payments of Interest has been received and we do not have
actual knowledge or reason to know that the holder is a
U.S. person, as defined under the Code, who is not an
exempt recipient. However, a
non-U.S. holder
will be subject to information reporting and, depending on the
circumstances, backup withholding at the applicable rate with
respect to payments of the proceeds of the sale of a note within
the United States or conducted through certain
U.S.-related
financial intermediaries, unless the statement described above
has been received, and we do not have actual knowledge or reason
to know that a holder is a U.S. person, as defined under
the Code, who is not an exempt recipient, or the
non-U.S. holder
otherwise establishes an exemption. Backup withholding is not an
additional tax. Any amounts withheld under the backup
withholding rules will be allowed as a refund or a credit
against a
non-U.S. holders
U.S. federal income tax liability, provided the required
information is furnished timely to the IRS. The backup
withholding and information reporting rules are complex, and
non-U.S. holders
are urged to consult their tax advisors regarding application of
these rules to their particular circumstances.
U.S.
Federal Estate Taxes
A note beneficially owned by an individual who is not a citizen
or resident of the U.S. (as specially defined for
U.S. federal estate tax purposes) at the time of his or her
death generally will not be subject to U.S. federal estate
tax as a result of the individuals death, provided that:
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the individual does not actually or constructively own 10% or
more of the total combined voting power of all classes of our
stock entitled to vote within the meaning of
Section 871(h)(3) of the Code; and
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interest payments with respect to such note, if received at the
time of the individuals death, would not have been
effectively connected with the conduct of a U.S. trade or
business by the individual.
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S-23
UNDERWRITING
Under the terms and subject to the conditions contained in an
underwriting agreement dated March 30, 2011, we have agreed
to sell to the underwriters named below, for whom Credit Suisse
Securities (USA) LLC and Merrill Lynch, Pierce, Fenner and
Smith Incorporated are acting as representatives, the following
respective principal amounts of the notes:
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Principal
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Amount of
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Underwriters
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Notes
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Credit Suisse Securities (USA) LLC
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$
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206,250,000
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Merrill Lynch, Pierce, Fenner &
Smith Incorporated
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112,500,000
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Goldman, Sachs & Co.
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56,250,000
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Total
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$
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375,000,000
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The underwriting agreement provides that the underwriters are
obligated to purchase all of the notes if any are purchased. The
underwriting agreement also provides that if an underwriter
defaults, the purchase commitments of non-defaulting
underwriters may be increased or the offering of the notes may
be terminated.
Notes sold by the underwriters to the public will initially be
offered at the public offering price set forth on the cover of
this prospectus supplement. Any notes sold by the underwriters
to securities dealers may be sold at a discount from the public
offering price of up to 0.35% of the principal amount. Any such
securities dealers may resell the notes purchased from the
underwriters to certain other brokers or dealers at a discount
from the public offering price of up to 0.225% of the principal
amount. After the initial offering, the underwriters may change
the public offering price and concession and discount to brokers
or dealers. The offering of the notes by the underwriters is
subject to receipt and acceptance and is subject to the
underwriters right to reject any order in whole or in part.
We estimate that our out of pocket expenses for this offering
will be approximately $550,000.
We have agreed that we will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file
with the SEC a registration statement under the Securities Act
relating to, any additional debt securities, or publicly
disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of
Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce,
Fenner and Smith Incorporated, after the date of this prospectus
through the settlement date.
The notes are a new issue of securities with no established
trading market. One or more of the underwriters intend to make a
secondary market for the notes. However, they are not obligated
to do so and may discontinue making a secondary market for the
notes at any time without notice. No assurance can be given as
to how liquid the trading market for the notes will be.
The notes are being offered for sale in the United States and in
jurisdictions outside the United States, subject to applicable
law.
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a Relevant
Member State), each underwriter has represented and agreed that
with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the
Relevant Implementation Date) it has not made and will not make
an offer of notes which are the subject of the offering
contemplated by this prospectus to the public in that Relevant
Member State other than:
(a) to any legal entity which is a qualified investor as
defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has
implemented the relevant provision of the 2010 PD Amending
Directive, 150, natural or legal persons (other than qualified
investors as defined in the Prospectus
S-24
Directive), as permitted under the Prospectus Directive, subject
to obtaining the prior consent of the relevant Dealer or Dealers
nominated by the issuer for any such offer; or
(c) in any other circumstances falling within
Article 3(2) of the Prospectus Directive, provided that no
such offer of notes shall require the issuer or any underwriter
to publish a prospectus pursuant to Article 3 of the
Prospectus Directive or supplement a prospectus pursuant to
Article 16 of the Prospectus Directive.
For the purposes of this provision, the expression an
offer of notes to the public in relation to any
notes in any Relevant Member State means the communication in
any form and by any means of sufficient information on the terms
of the offer and the notes to be offered so as to enable an
investor to decide to purchase or subscribe the notes, as the
same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State, the
expression Prospectus Directive means Directive
2003/71/EC (and amendments thereto, including the 2010 PD
Amending Directive, to the extent implemented in the Relevant
Member State), and includes any relevant implementing measure in
the Relevant Member State and the expression 2010 PD
Amending Directive means Directive 2010/73/EU.
Each underwriter has represented and agreed that:
(a) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the Financial Services
and Markets Act 2000 (the FSMA)) received by it in
connection with the issue or sale of the notes in circumstances
in which Section 21(1) of the FSMA does not apply to the
issuer; and (b) it has complied and will comply with all
applicable provisions of the FSMA with respect to anything done
by it in relation to the notes in, from or otherwise involving
the United Kingdom.
The notes may not be offered or sold by means of any document
other than (i) in circumstances which do not constitute an
offer to the public within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), or (ii) to
professional investors within the meaning of the
Securities and Futures Ordinance (Cap.571, Laws of Hong Kong)
and any rules made thereunder, or (iii) in other
circumstances which do not result in the document being a
prospectus within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), and no advertisement,
invitation or document relating to the notes may be issued or
may be in the possession of any person for the purpose of issue
(in each case whether in Hong Kong or elsewhere), which is
directed at, or the contents of which are likely to be accessed
or read by, the public in Hong Kong (except if permitted to do
so under the laws of Hong Kong) other than with respect to notes
which are or are intended to be disposed of only to persons
outside Hong Kong or only to professional investors
within the meaning of the Securities and Futures Ordinance (Cap.
571, Laws of Hong Kong) and any rules made thereunder.
The securities have not been and will not be registered under
the Financial Instruments and Exchange Law of Japan (the
Financial Instruments and Exchange Law) and each underwriter has
agreed that it will not offer or sell any securities, directly
or indirectly, in Japan or to, or for the benefit of, any
resident of Japan (which term as used herein means any person
resident in Japan, including any corporation or other entity
organized under the laws of Japan), or to others for re-offering
or resale, directly or indirectly, in Japan or to a resident of
Japan, except pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the Financial
Instruments and Exchange Law and any other applicable laws,
regulations and ministerial guidelines of Japan.
This prospectus has not been registered as a prospectus with the
Monetary Authority of Singapore. Accordingly, this prospectus
and any other document or material in connection with the offer
or sale, or invitation for subscription or purchase, of the
notes may not be circulated or distributed, nor may the notes be
offered or sold, or be made the subject of an invitation for
subscription or purchase, whether directly or indirectly, to
persons in Singapore other than (i) to an institutional
investor under Section 274 of the Securities and Futures
Act, Chapter 289 of Singapore (the SFA),
(ii) to a relevant person, or any person pursuant to
Section 275(1A), and in accordance with the conditions,
specified in Section 275 of the SFA or (iii) otherwise
pursuant to, and in accordance with the conditions of, any other
applicable provision of the SFA.
Where the notes are subscribed or purchased under
Section 275 by a relevant person which is: (a) a
corporation (which is not an accredited investor) the sole
business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of
whom is an accredited investor; or
S-25
(b) a trust (where the trustee is not an accredited
investor) whose sole purpose is to hold investments and each
beneficiary is an accredited investor, shares, debentures and
units of shares and debentures of that corporation or the
beneficiaries rights and interest in that trust shall not
be transferable for 6 months after that corporation or that
trust has acquired the notes under Section 275 except:
(1) to an institutional investor under Section 274 of
the SFA or to a relevant person, or any person pursuant to
Section 275(1A), and in accordance with the conditions,
specified in Section 275 of the SFA; (2) where no
consideration is given for the transfer; or (3) by
operation of law.
We have agreed to indemnify the several underwriters against
liabilities under the Securities Act or contribute to payments
which the underwriters may be required to make in that respect.
The underwriters and their respective affiliates are full
service financial institutions engaged in various activities,
which may include securities trading, commercial and investment
banking, financial advisory, investment management, investment
research, principal investment, hedging, financing and brokerage
activities.
Certain of the underwriters and their respective affiliates
have, from time to time, performed, and may in the future
perform, various financial advisory, commercial banking and
investment banking services for us and our affiliates, for which
they received or will receive customary fees and expense
reimbursement.
In addition, in the ordinary course of their business
activities, the underwriters and their affiliates may make or
hold a broad array of investments and actively trade debt and
equity securities (or related derivative securities) and
financial instruments (including bank loans) for their own
account and for the accounts of their customers. Such
investments and securities activities may involve securities
and/or
instruments of ours or our affiliates. The underwriters and
their affiliates may also make investment recommendations
and/or
publish or express independent research views in respect of such
securities or financial instruments and may hold, or recommend
to clients that they acquire, long
and/or short
positions in such securities and instruments.
In connection with the offering the underwriters may engage in
stabilizing transactions, over-allotment transactions, syndicate
covering transactions and penalty bids.
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Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a
specified maximum.
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Over-allotment involves sales by the underwriters of notes in
excess of the principal amount of the notes the underwriters are
obligated to purchase, which creates a syndicate short position.
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Syndicate covering transactions involve purchases of the notes
in the open market after the distribution has been completed in
order to cover syndicate short positions. A short position is
more likely to be created if the underwriters are concerned that
there may be downward pressure on the price of the notes in the
open market after pricing that could adversely affect investors
who purchase in the offering.
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Penalty bids permit the representatives to reclaim a selling
concession from a syndicate member when the notes originally
sold by the syndicate member are purchased in a stabilizing or
syndicate covering transaction to cover syndicate short
positions.
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These stabilizing transactions, over-allotment transactions,
syndicate covering transactions and penalty bids may have the
effect of raising or maintaining the market price of the notes
or preventing or retarding a decline in the market price of the
notes. As a result, the price of the notes may be higher than
the price that might otherwise exist in the open market. These
transactions, if commenced, may be discontinued at any time.
S-26
NOTICE TO
CANADIAN RESIDENTS
Resale
Restrictions
The distribution of the notes in Canada is being made only on a
private placement basis exempt from the requirement that we
prepare and file a prospectus with the securities regulatory
authorities in each province where trades of notes are made. Any
resale of the notes in Canada must be made under applicable
securities laws which will vary depending on the relevant
jurisdiction, and which may require resales to be made under
available statutory exemptions or under a discretionary
exemption granted by the applicable Canadian securities
regulatory authority. Purchasers are advised to seek legal
advice prior to any resale of the notes.
Representations
of Purchasers
By purchasing notes in Canada and accepting a purchase
confirmation a purchaser is representing to us and the dealer
from whom the purchase confirmation is received that:
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the purchaser is entitled under applicable provincial securities
laws to purchase the notes without the benefit of a prospectus
qualified under those securities laws,
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where required by law, that the purchaser is purchasing as
principal and not as agent,
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the purchaser has reviewed the text above under Resale
Restrictions, and
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the purchaser acknowledges and consents to the provision of
specified information concerning its purchase of the notes to
the regulatory authority that by law is entitled to collect the
information.
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Further details concerning the legal authority for this
information are available on request.
Rights of
Action Ontario Purchasers Only
Under Ontario securities legislation, certain purchasers who
purchase a security offered by this prospectus during the period
of distribution will have a statutory right of action for
damages, or while still the owner of the notes, for rescission
against us in the event that this prospectus contains a
misrepresentation without regard to whether the purchaser relied
on the misrepresentation. The right of action for damages is
exercisable not later than the earlier of 180 days from the
date the purchaser first had knowledge of the facts giving rise
to the cause of action and three years from the date on which
payment is made for the notes. The right of action for
rescission is exercisable not later than 180 days from the
date on which payment is made for the notes. If a purchaser
elects to exercise the right of action for rescission, the
purchaser will have no right of action for damages against us.
In no case will the amount recoverable in any action exceed the
price at which the notes were offered to the purchaser and if
the purchaser is shown to have purchased the securities with
knowledge of the misrepresentation, we will have no liability.
In the case of an action for damages, we will not be liable for
all or any portion of the damages that are proven to not
represent the depreciation in value of the notes as a result of
the misrepresentation relied upon. These rights are in addition
to, and without derogation from, any other rights or remedies
available at law to an Ontario purchaser. The foregoing is a
summary of the rights available to an Ontario purchaser. Ontario
purchasers should refer to the complete text of the relevant
statutory provisions.
Enforcement
of Legal Rights
All of our directors and officers as well as the experts named
herein may be located outside of Canada and, as a result, it may
not be possible for Canadian purchasers to effect service of
process within Canada upon us or those persons. All or a
substantial portion of our assets and the assets of those
persons may be located outside of Canada and, as a result, it
may not be possible to satisfy a judgment against us or those
persons in Canada or to enforce a judgment obtained in Canadian
courts against us or those persons outside of Canada.
Taxation
and Eligibility for Investment
Canadian purchasers of notes should consult their own legal and
tax advisors with respect to the tax consequences of an
investment in the notes in their particular circumstances and
about the eligibility of the notes for investment by the
purchaser under relevant Canadian legislation.
S-27
LEGAL
MATTERS
Certain legal matters in connection with the offering of the
notes will be passed upon for us by Wilmer Cutler Pickering Hale
and Dorr LLP. The underwriters have been represented by Cravath,
Swaine & Moore LLP.
EXPERTS
The consolidated financial statements and schedule of Analog
Devices, Inc. appearing in Analog Devices, Inc.s Annual
Report
(Form 10-K)
for the year ended October 30, 2010, and the effectiveness
of Analog Devices, Inc.s internal control over financial
reporting as of October 30, 2010 have been audited by
Ernst & Young LLP, independent registered public
accounting firm, as set forth in their reports thereon, included
therein, and incorporated herein by reference. Such consolidated
financial statements and schedule are incorporated herein by
reference in reliance upon such reports given on the authority
of such firm as experts in accounting and auditing.
S-28
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SECs
website at www.sec.gov. Copies of certain information filed by
us with the SEC are also available on our website at
www.analog.com. Our website is not a part of this prospectus
supplement. You may also read and copy any document we file at
the SECs public reference room, 100 F Street,
N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
room.
Because our common stock is listed on the New York Stock
Exchange, you may also inspect reports, proxy statements and
other information about us at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference much of the
information we file with the SEC, which means that we can
disclose important information to you by referring you to those
publicly available documents. The information that we
incorporate by reference in this prospectus supplement is
considered to be part of this prospectus supplement and
accompanying prospectus. Because we are incorporating by
reference future filings with the SEC, this prospectus
supplement is continually updated and those future filings may
modify or supersede some of the information included or
incorporated in this prospectus supplement. In all cases, you
should rely on the later information over different information
included in this prospectus supplement and accompanying
prospectus. This prospectus supplement incorporates by reference
the documents listed below and any future filings we make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 prior to the termination of the
offering:
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Annual Report on
Form 10-K
for the fiscal year ended October 30, 2010 (including those
portions of our Definitive Proxy Statement on Schedule 14A
filed on February 2, 2011 that are incorporated by
reference therein);
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Quarterly Report on Form
10-Q for the
fiscal quarter ended January 29, 2011; and
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Current Reports on
Form 8-K
filed on December 3, 2010 and March 11, 2011.
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We are not, however, incorporating by reference any documents or
portions thereof, whether specifically listed above or filed in
the future, that are not deemed filed with the SEC,
including any information furnished pursuant to Items 2.02
or 7.01 of
Form 8-K
or certain exhibits furnished pursuant to Item 9.01 of
Form 8-K.
You may request a copy of these filings, at no cost, by writing
or telephoning us at the following address:
Analog Devices, Inc.
One Technology Way
Norwood, MA
02062-9106
Telephone:
(800) 468-7751
Attention: Investor Relations
S-29
PROSPECTUS
Analog Devices, Inc.
DEBT SECURITIES
We may from time to time offer to sell the debt securities
described in this prospectus. The debt securities will be senior
unsecured obligations and will rank equally with all of our
other senior unsecured indebtedness.
Each time we offer debt securities using this prospectus, we may
provide specific terms and offering prices in supplements to
this prospectus. The prospectus supplements may also add, update
or change the information in this prospectus and will also
describe the specific manner in which we will offer the debt
securities. You should carefully read this prospectus and the
applicable prospectus supplement, including the information
incorporated by reference, prior to investing in our debt
securities.
We may offer and sell the debt securities on a continuous or
delayed basis directly to investors or through underwriters,
dealers or agents, or through a combination of these methods.
The names of any underwriters, dealers or agents will be
included in a prospectus supplement. If any agents, dealers or
underwriters are involved in the sale of any debt securities,
the applicable prospectus supplement will set forth any
applicable commissions or discounts.
Investing in these debt securities involves risks. See
Risk Factors contained in any accompanying
prospectus supplement and in the documents incorporated herein
by reference.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is June 25, 2009.
TABLE OF
CONTENTS
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2
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3
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3
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10
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11
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13
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13
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ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, which we
refer to as the SEC, utilizing a shelf registration
process. Under this shelf registration process, we may from time
to time sell debt securities described in this prospectus in one
or more offerings.
This prospectus provides you with a general description of the
debt securities we may offer. Each time we sell debt securities,
we may provide one or more prospectus supplements that will
contain specific information about the terms of the offering.
The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both
this prospectus and any accompanying prospectus supplement
together with the additional information described under the
heading Where You Can Find More Information on
page 1 of this prospectus.
You should rely only on the information contained in or
incorporated by reference in this prospectus, any accompanying
prospectus supplement or in any related free writing
prospectus filed by us with the SEC. We have not
authorized anyone to provide you with different information.
This prospectus and any accompanying prospectus supplement do
not constitute an offer to sell or the solicitation of an offer
to buy any debt securities other than the debt securities
described in any accompanying prospectus supplement or an offer
to sell or the solicitation of an offer to buy such debt
securities in any circumstances in which such offer or
solicitation is unlawful. You should assume that the information
appearing in this prospectus, any prospectus supplement and the
documents incorporated by reference is accurate only as of their
respective dates. Our business, financial condition, results of
operations and prospects may have changed materially since those
dates.
The terms the Company, we,
our, ours and us refer to
Analog Devices, Inc., and its subsidiaries on a consolidated
basis, unless the context otherwise requires.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SECs
website at
http://www.sec.gov.
Copies of certain information filed by us with the SEC are also
available on our website at
http://www.analog.com.
Our website is not a part of this prospectus. You may also read
and copy any document we file at the SECs public reference
room, 100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
room.
Because our common stock is listed on the New York Stock
Exchange, you may also inspect reports, proxy statements and
other information about us at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
This prospectus is part of a registration statement we filed
with the SEC. This prospectus omits some information contained
in the registration statement in accordance with SEC rules and
regulations. You should review the information and exhibits in
the registration statement for further information about us and
the securities we are offering. Statements in this prospectus
concerning any document we filed as an exhibit to the
registration statement or that we otherwise filed with the SEC
are not intended to be comprehensive and are qualified by
reference to these filings. You should review the complete
document to evaluate these statements.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference much of the
information we file with the SEC, which means that we can
disclose important information to you by referring you to those
publicly available documents. The information that we
incorporate by reference in this prospectus is considered to be
part of this prospectus. Because we are incorporating by
reference future filings with the SEC, this prospectus is
continually updated and those future filings may modify or
supersede some of the information included or incorporated in
this prospectus. This means that you must look at all of the SEC
filings that we incorporate by reference to determine if any of
the statements in this prospectus or in any document previously
incorporated
1
by reference have been modified or superseded. This prospectus
incorporates by reference the documents listed below and any
future filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (in
each case, other than those documents or the portions of those
documents not deemed to be filed) until the offering of the
securities under the registration statement is terminated or
completed:
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Annual Report on
Form 10-K
for the fiscal year ended November 1, 2008;
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Quarterly Reports on
Form 10-Q
for the fiscal quarters ended January 31, 2009 and
May 2, 2009; and
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Current Reports on
Form 8-K
filed December 3, 2008, December 8, 2008 and
January 20, 2009.
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You may request a copy of these filings, at no cost, by writing
or telephoning us at the following address:
Analog Devices, Inc.
One Technology Way
Norwood, MA
02062-9106
Telephone:
(800) 468-7751
Attention: Investor Relations
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus and the documents that we incorporate by
reference contain forward-looking statements that are subject to
the safe harbors created under the Securities Act of 1933 (the
Securities Act) and the Securities Exchange Act of
1934 (the Exchange Act). These statements are based
on current expectations, estimates, forecasts, and projections
about the industries in which we operate and the beliefs and
assumptions of our management. Words such as
expects, anticipates,
targets, goals, projects,
intends, plans, believes,
seeks, estimates, continues
and may and variations of such words and similar
expressions are intended to identify such forward-looking
statements. In addition, any statements that refer to
projections regarding our future financial performance,
particularly in light of the global credit and financial market
crisis; our anticipated growth and trends in our businesses; our
capital needs and capital expenditures; our market position and
competitive changes in the marketplace for our products; our
ability to innovate new products and technologies; the
effectiveness of our efforts to refocus our operations and
reduce our cost structure; our ability to access credit or
capital markets; our ability to pay dividends or repurchase
stock; our third-party suppliers; intellectual property and
litigation matters; potential acquisitions or divestitures; key
personnel; the effect of new accounting pronouncements and other
characterizations of future events or circumstances are
forward-looking statements. You are cautioned that these
forward-looking statements are only predictions and are subject
to risks, uncertainties and assumptions that are difficult to
predict. You should pay particular attention to the important
risk factors and cautionary statements referenced in the section
of any accompanying prospectus supplement entitled Risk
Factors. You should also carefully review the risk factors
and cautionary statements described in the other documents we
file from time to time with the SEC, specifically our Annual
Reports on
Form 10-K,
our Quarterly Reports on
Form 10-Q
and our Current Reports on
Form 8-K.
We undertake no obligation to revise or update any
forward-looking statements, except to the extent required by law.
2
THE
COMPANY
We are a world leader in the design, manufacture and marketing
of high-performance analog, mixed-signal and digital signal
processing integrated circuits used in industrial,
communication, computer and consumer applications. Since our
inception in 1965, we have focused on solving the engineering
challenges associated with signal processing in electronic
equipment.
We sell our products worldwide through a direct sales force,
third-party distributors and independent sales representatives
and through our website. We have direct sales offices in 17
countries, including the United States.
We are incorporated in Massachusetts. As of November 1,
2008, we employed approximately 9,000 individuals worldwide.
Our common stock is listed on the New York Stock Exchange under
the ticker symbol ADI and is included in the
Standard & Poors 500 Index. Our principal
executive offices are located at One Technology Way, Norwood,
Massachusetts 02062, and our telephone number is
(781) 329-4700.
CONSOLIDATED
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed
charges for each of the periods indicated. You should read this
table in conjunction with the consolidated financial statements
and notes incorporated by reference herein.
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Six Months Ended
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Fiscal Year Ended
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May 2,
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May 3,
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November 1,
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November 3,
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October 28,
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October 29,
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October 30,
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2009
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2008
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2008
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2007
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2006
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2005
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2004
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Consolidated Ratios of Earnings to Fixed Charges(1)
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110.8
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401.6
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416.1
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362.2
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305.7
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350.0
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368.9
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For purposes of computing the ratio of earnings to fixed
charges, earnings consist of income before income taxes plus
amortization of capitalized interest and fixed charges. Fixed
charges consist of interest expense (including an estimate of
interest within rent expense). |
USE OF
PROCEEDS
We intend to use the net proceeds from the sale of the debt
securities for general corporate purposes unless otherwise
indicated in a prospectus supplement.
DESCRIPTION
OF DEBT SECURITIES
This prospectus describes certain general terms and provisions
of our debt securities. When we offer to sell a particular
series of debt securities, we will describe the specific terms
of the series in a supplement to this prospectus. We will also
indicate in the supplement whether the general terms and
provisions described in this prospectus apply to a particular
series of debt securities.
Unless otherwise specified in a supplement to this prospectus,
the debt securities will be our direct, unsecured obligations
and will rank equally with all of our other unsecured and
unsubordinated indebtedness.
The debt securities will be issued under an indenture between us
and The Bank of New York Mellon Trust Company, N.A., as
trustee. We have summarized select portions of the indenture
below. The summary is not complete. The form of the indenture
has been incorporated by reference as an exhibit to the
registration statement and you should read the indenture for
provisions that may be important to you. Capitalized terms used
in the summary and not defined herein have the meanings
specified in the indenture.
When we refer to the Company, we,
our and us in this section, we mean
Analog Devices, Inc. excluding, unless the context otherwise
requires or as otherwise expressly stated, our subsidiaries.
3
General
The terms of each series of debt securities will be established
by or pursuant to a resolution of our board of directors or a
duly authorized committee of our board of directors and set
forth or determined in the manner provided in a resolution of
our board of directors or a duly authorized committee of our
board of directors, in an officers certificate or by a
supplemental indenture. The particular terms of each series of
debt securities will be described in a prospectus supplement
relating to such series (including any pricing supplement or
term sheet).
We can issue an unlimited amount of debt securities under the
indenture that may be in one or more series with the same or
various maturities, at par, at a premium, or at a discount. We
will set forth in a prospectus supplement (including any pricing
supplement or term sheet) relating to any series of debt
securities being offered, the aggregate principal amount and the
following terms of the debt securities, if applicable:
(1) the title of the debt securities;
(2) the price or prices (expressed as a percentage of the
principal amount) at which we will sell the debt securities;
(3) any limit on the aggregate principal amount of the debt
securities;
(4) the date or dates on which we will pay the principal on
the debt securities;
(5) the rate or rates (which may be fixed or variable) per
annum or the method used to determine the rate or rates
(including any commodity, commodity index, stock exchange index
or financial index) at which the debt securities will bear
interest, the date or dates from which interest will accrue, the
date or dates on which interest will commence and be payable and
any regular record date for the interest payable on any interest
payment date;
(6) the place or places where principal of, premium and
interest on the debt securities will be payable;
(7) the terms and conditions upon which we may redeem the
debt securities;
(8) any obligation we have to redeem or purchase the debt
securities pursuant to any sinking fund or analogous provisions
or at the option of a holder of debt securities;
(9) the dates on which and the price or prices at which we
will repurchase debt securities at the option of the holders of
debt securities and other detailed terms and provisions of these
repurchase obligations;
(10) the denominations in which the debt securities will be
issued, if other than denominations of $1,000 and any integral
multiple thereof;
(11) whether the debt securities will be issued in the form
of certificated debt securities or global debt securities;
(12) the portion of the principal amount of the debt
securities payable upon declaration of acceleration of the
maturity date, if other than the principal amount;
(13) the currency of denomination of the debt securities;
(14) the designation of the currency, currencies or
currency units in which payment of principal of, premium and
interest on the debt securities will be made;
(15) if payments of principal of, premium or interest on
the debt securities will be made in one or more currencies or
currency units other than that or those in which the debt
securities are denominated, the manner in which the exchange
rate with respect to these payments will be determined;
(16) the manner in which the amounts of payment of
principal of, premium or interest on the debt securities will be
determined, if these amounts may be determined by reference to
an index based on a
4
currency or currencies other than that in which the debt
securities are denominated or designated to be payable or by
reference to a commodity, commodity index, stock exchange index
or financial index;
(17) any provisions relating to any security provided for
the debt securities;
(18) any addition to or change in the Events of Default
described in this prospectus or in the indenture with respect to
the debt securities and any change in the acceleration
provisions described in this prospectus or in the indenture with
respect to the debt securities;
(19) any addition to or change in the covenants described
in this prospectus or in the indenture with respect to the debt
securities;
(20) any listing on a securities exchange;
(21) the initial public offering price, if any is
established for such debt securities;
(22) any other terms of the debt securities, which may
supplement, modify or delete any provision of the indenture as
it applies to that series; and
(23) any depositaries, interest rate calculation agents,
exchange rate calculation agents or other agents with respect to
the debt securities if other than those appointed in the
indenture.
In addition, the indenture does not limit our ability to issue
convertible or subordinated debt securities. We may also issue
debt securities that provide for an amount less than their
stated principal amount to be due and payable upon declaration
of acceleration of their maturity pursuant to the terms of the
indenture. We will provide you with information on the federal
income tax considerations and other special considerations
applicable to any of these debt securities in the applicable
prospectus supplement.
Transfer
and Exchange
See Forms of Securities in this prospectus for
description of transfer and exchange.
No
Protection In the Event of a Change of Control
Unless we state otherwise in the applicable prospectus
supplement, the debt securities will not contain any provisions
which may afford holders of the debt securities protection in
the event we have a change in control or in the event of a
highly leveraged transaction (whether or not such transaction
results in a change in control) which could adversely affect
holders of debt securities.
Covenants
We will set forth in the applicable prospectus supplement any
restrictive covenants applicable to any issue of debt securities.
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 (a successor person) unless:
(1) we are the surviving corporation or the successor
person (if other than Analog Devices, Inc.) is a corporation
organized and validly existing under the laws of any
U.S. domestic jurisdiction and expressly assumes by a
supplemental indenture our obligations on the debt securities
and under the indenture;
(2) immediately after giving effect to the transaction, no
Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have
occurred and be continuing under the indenture; and
(3) certain other conditions are met.
Notwithstanding the above, any subsidiary of ours may
consolidate with, merge into or transfer all or part of its
properties to us.
5
Events of
Default
Event of Default means with respect to any
series of debt securities, any of the following unless otherwise
provided in the resolutions establishing such series:
(1) default in the payment of any interest upon any debt
security of that series when it becomes due and payable, and
continuance of that default for a period of 30 days;
(2) default in the payment of principal of or premium on
any debt security of that series when due and payable;
(3) default in the performance or breach of any other
covenant by us in the indenture (other than a covenant that has
been included in the indenture solely for the benefit of a
series of debt securities other than that series), 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 25% in
principal amount of the outstanding debt securities of that
series as provided in the indenture;
(4) certain events of bankruptcy, insolvency or
reorganization involving us; and
(5) any other Event of Default provided with respect to
debt securities of that series that is described in the
applicable prospectus supplement accompanying this prospectus.
No Event of Default with respect to a particular series of debt
securities (except as to certain events of bankruptcy,
insolvency or reorganization) necessarily constitutes an Event
of Default with respect to any other series of debt securities.
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.
If an Event of Default with respect to debt securities of any
series at the time outstanding occurs and is continuing, then
the trustee or the holders of not less than 25% in principal
amount of the outstanding debt securities 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 (or, if the debt securities of that series are
discount securities, that portion of the principal amount as may
be specified in the terms of that series) and accrued and unpaid
interest, if any, on all debt securities of that series. In the
case of an Event of Default resulting from certain events of
bankruptcy, insolvency or reorganization, the principal (or such
specified amount) of and accrued and unpaid interest, if any, on
all outstanding debt securities 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. At
any time after a declaration of acceleration with respect to
debt securities of any series has been made, but 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 debt securities of that series may
rescind and annul the acceleration if all Events of Default,
other than the non-payment of the principal and interest with
respect to debt securities of that series which have become due
solely by such declaration of acceleration, have been cured or
waived as provided in the indenture and the trustees fees
and expenses have been paid in full. We refer you to the
prospectus supplement relating to any series of debt securities
that are discount securities for the particular provisions
relating to acceleration of a portion of the principal amount of
such discount securities upon the occurrence of an Event of
Default.
The indenture provides that the trustee will be under no
obligation to exercise any of its rights or powers under the
indenture unless the trustee receives security or indemnity
satisfactory to it against any loss, liability or expense.
Subject to certain rights of the trustee, the holders of a
majority in principal amount of the outstanding debt securities
of any 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 debt securities of that series.
No holder of any debt security 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:
(1) that holder has previously given to the trustee written
notice of a continuing Event of Default with respect to debt
securities of that series; and
6
(2) the holders of not less than 25% in principal amount of
the outstanding debt securities of that series have made written
request, and offered reasonable indemnity, to the trustee to
institute the proceeding as trustee, and after receipt of such
request the trustee has not received from the holders of a
majority in principal amount of the outstanding debt securities
of that series a direction inconsistent with that request and
has failed to institute the proceeding within 60 days.
Notwithstanding the foregoing, the holder of any debt security
will have an absolute and unconditional right to receive payment
of the principal of, premium and any 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.
The indenture requires us, within 120 days after the end of
our fiscal year, to furnish to the trustee a statement as to
compliance with the indenture. The indenture provides that the
trustee may withhold notice to the holders of debt securities of
any series of any default or Event of Default (except in payment
on any debt securities of that series) with respect to debt
securities of that series if it in good faith determines that
withholding notice is in the interest of the holders of those
debt securities.
Modification
and Waiver
We or the trustee may amend or supplement the indenture or the
debt securities of one or more series without the consent of the
holders of the outstanding debt securities under the indenture:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with certain covenants under the indenture
with respect to mergers and sales of assets;
(3) to provide for uncertificated debt securities in
addition to or in place of certificated debt securities;
(4) to make any change that does not adversely affect the
rights of any holder of debt securities under the indenture;
(5) to provide for the issuance of and establish the form
and terms and conditions of debt securities under the indenture
as permitted thereunder;
(6) to evidence and provide for the acceptance of
appointment by a successor trustee with respect to any of the
debt securities and to add to or change any of the provisions of
the indenture as shall be necessary to provide for or facilitate
the administration of the trusts thereunder by more than one
trustee; or
(7) to comply with requirements of the SEC in order to
effect or maintain the qualification of the indenture under the
Trust Indenture Act.
In addition, we may modify and amend the indenture as to all
other matters with the consent of the holders of at least a
majority in principal amount of the outstanding debt securities
of each series affected by the modifications or amendments,
provided however that we may not make any modification or
amendment without the consent of the holders of each affected
debt security then outstanding if that amendment will:
(1) reduce the amount of debt securities whose holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of
interest (including default interest) on any debt security;
(3) reduce the principal of or premium on or change the
fixed maturity of any debt security or reduce the amount of, or
postpone the date fixed for, the payment of any sinking fund or
analogous obligation with respect to any series of debt
securities;
(4) reduce the principal amount of discount securities
payable upon acceleration of maturity;
(5) waive a default in the payment of the principal of,
premium or interest on any debt security (except a rescission of
acceleration of the debt securities of any series by the holders
of at least a majority
7
in aggregate principal amount of the then outstanding debt
securities of that series and a waiver of the payment default
that resulted from such acceleration);
(6) make the principal of or premium or interest on any
debt security payable in currency other than that stated in the
debt security; or
(7) make any change to certain provisions of the indenture
relating to, among other things, the right of holders of debt
securities to receive payment of the principal of, premium and
interest on those debt securities and to institute suit for the
enforcement of any such payment and to waivers or amendments.
Except for certain specified provisions, the holders of at least
a majority in principal amount of the outstanding debt
securities of any series may on behalf of the holders of all
debt securities of that series waive our compliance with
provisions of the indenture. The holders of a majority in
principal amount of the outstanding debt securities of any
series may on behalf of the holders of all the debt securities
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
debt security of that series; provided, however, that the
holders of a majority in principal amount of the outstanding
debt securities of any series may rescind an acceleration and
its consequences, including any related payment default that
resulted from the acceleration.
Defeasance
of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance. The indenture provides that,
unless otherwise provided by the terms of the applicable series
of debt securities, we may be discharged from any and all
obligations in respect of the debt securities of any series
(except for certain obligations to register the transfer or
exchange of debt securities of such series, to replace stolen,
lost or mutilated debt securities of such series, and to
maintain paying agencies and certain provisions relating to the
treatment of funds held by paying agents). We will be so
discharged upon the deposit with the trustee, in trust, of money
and/or
U.S. Government Obligations or, in the case of debt
securities denominated in a single currency other than
U.S. Dollars, money
and/or
Foreign 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 to
pay and discharge each installment of principal and interest on
and any mandatory sinking fund payments in respect of the debt
securities of that series on the stated maturity of those
payments in accordance with the terms of the indenture and those
debt securities.
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 United
States Internal Revenue Service a ruling or, since the date of
execution of the indenture, there has been a change in the
applicable United States federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm
that, the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal
income tax purposes as a result of the deposit, defeasance and
discharge and will be subject to United States 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, defeasance and
discharge had not occurred.
Defeasance of Certain Covenants. The indenture
provides that, unless otherwise provided by the terms of the
applicable series of debt securities, upon compliance with
certain conditions:
(1) 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 which may be set forth in the
applicable prospectus supplement; and
(2) any omission to comply with those covenants will not
constitute a default or an event of default with respect to the
debt securities of that series (covenant defeasance).
The conditions include:
(1) depositing with the trustee money
and/or
U.S. Government Obligations or, in the case of debt
securities denominated in a single currency other than
U.S. Dollars, money
and/or
Foreign Government
8
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 to pay and discharge each
installment of principal of, premium and interest on and any
mandatory sinking fund payments in respect of the debt
securities of that series on the stated maturity of those
payments in accordance with the terms of the indenture and those
debt securities; and
(2) delivering to the trustee an opinion of counsel to the
effect that the holders of the debt securities of that series
will not recognize income, gain or loss for United States
federal income tax purposes as a result of the deposit and
related covenant defeasance and will be subject to United States
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.
Covenant Defeasance and Events of Default. In
the event we exercise our option to effect covenant defeasance
with respect to any series of debt securities and the debt
securities 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 or Foreign Government
Obligations on deposit with the trustee should be sufficient to
pay amounts due on the debt securities of that series at the
time of their stated maturity but may not be sufficient to pay
amounts due on the debt securities of that series at the time of
the acceleration resulting from the Event of Default. However,
we shall remain liable for those payments.
Foreign Government Obligations means, with
respect to debt securities of any series that are denominated in
a currency other than U.S. Dollars:
(1) direct obligations of the government that issued or
caused to be issued such currency for the payment of which
obligations its full faith and credit is pledged which are not
callable or redeemable at the option of the issuer
thereof; or
(2) obligations of a person controlled or supervised by or
acting as an agency or instrumentality of that government the
timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by that government which are not
callable or redeemable at the option of the issuer thereof.
U.S. Government Obligations means
securities that are: (1) direct obligations of the United States
for the payment of which its full faith and credit is pledged,
or (2) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States
the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States; that, in
either case under clauses (1) or (2) are not callable
or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust
company as custodian with respect to any such
U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder
of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government
Obligation evidenced by such depository receipt.
Satisfaction
and Discharge Prior to Maturity
The Company has the right at any time to satisfy and discharge
its obligations, other than certain specified obligations, under
all debt securities under the indenture by depositing in trust
with the trustee money
and/or
U.S. Government Obligations. The Companys exercise of
this right is subject to certain conditions including that
either (1) all securities under the indenture (subject to
certain exceptions) have been delivered to the trustee for
cancellation or (2) all securities under the indenture not
previously delivered to the trustee for cancellation have become
due and payable or will become due and payable at their stated
maturity within one year or have been called for redemption or
are to be called for redemption within one year or have been
paid and discharged under the Companys right of legal
defeasance described above.
If such deposit is sufficient, in the opinion of a nationally
recognized firm of independent public accountants (unless the
funds consist solely of money), to make all payments of
(1) interest on the debt
9
securities prior to their redemption or maturity and
(2) principal of (and premium, if any) and interest on such
series of debt securities when due upon redemption or at
maturity, all the obligations of the Company under the indenture
will be discharged and terminated except as otherwise provided
in the indenture.
For U.S. income tax purposes, it is likely that any such
deposit and discharge with respect to any debt securities will
be treated as a taxable exchange of such debt securities for
interests in the trust. In that event, a holder will recognize
gain or loss equal to the difference between the holders
cost or other tax basis for the debt securities and the value of
the holders interest in such trust; and thereafter will be
required to include in income a share of the income, gain and
loss of the trust. Purchasers of the debt securities should
consult their own advisers with respect to the tax consequences
to them of such deposit and discharge, including the
applicability and effect of tax laws other than the
U.S. income tax law.
Governing
Law
The indenture and the debt securities will be governed by, and
construed in accordance with, the internal laws of the State of
New York.
FORMS OF
SECURITIES
Each security will be represented either by a certificate issued
in definitive form to a particular investor or by one or more
global securities representing the entire issuance of
securities. Certificated securities will be in definitive form
and global securities will be issued in registered form.
Definitive securities name you or your nominee as the owner of
the security, and in order to transfer or exchange these
securities or to receive payments other than interest or other
interim payments, you or your nominee must physically deliver
the securities to the trustee, registrar, paying agent or other
agent, as applicable. Global securities name a depositary or its
nominee as the owner of the securities represented by these
global securities. The depositary maintains a computerized
system that will reflect each investors beneficial
ownership of the securities through an account maintained by the
investor with its broker/dealer, bank, trust company or other
representative, as we explain more fully below.
Global
Securities
Registered Global Securities. We may issue the
registered securities in the form of one or more fully
registered global securities that will be deposited with a
depositary or its nominee identified in the applicable
prospectus supplement and registered in the name of that
depositary or nominee. In those cases, one or more registered
global securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal or
face amount of the securities to be represented by registered
global securities. Unless and until it is exchanged in whole for
securities in definitive registered form, a registered global
security may not be transferred except as a whole by and among
the depositary for the registered global security, the nominees
of the depositary or any successors of the depositary or those
nominees.
If not described below, any specific terms of the depositary
arrangement with respect to any securities to be represented by
a registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the
following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global
security will be limited to persons, called participants, that
have accounts with the depositary or persons that may hold
interests through participants. Upon the issuance of a
registered global security, the depositary will credit, on its
book-entry registration and transfer system, the
participants accounts with the respective principal or
face amounts of the securities beneficially owned by the
participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the
accounts to be credited. Ownership of beneficial interests in a
registered global security will be shown on, and the transfer of
ownership interests will be effected only through, records
maintained by the depositary, with respect to interests of
participants, and on the records of participants, with respect
to interests of persons holding through participants. The laws
of some states may require that some purchasers of securities
take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge
beneficial interests in registered global securities.
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So long as the depositary, or its nominee, is the registered
owner of a registered global security, that depositary or its
nominee, as the case may be, will be considered the sole owner
or holder of the securities represented by the registered global
security for all purposes under the indenture. Except as
described below, owners of beneficial interests in a registered
global security will not be entitled to have the securities
represented by the registered global security registered in
their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be
considered the owners or holders of the securities under the
indenture. Accordingly, each person owning a beneficial interest
in a registered global security must rely on the procedures of
the depositary for that registered global security and, if that
person is not a participant, on the procedures of the
participant through which the person owns its interest, to
exercise any rights of a holder under the indenture. We
understand that under existing industry practices, if we request
any action of holders or if an owner of a beneficial interest in
a registered global security desires to give or take any action
that a holder is entitled to give or take under the indenture,
the depositary for the registered global security would
authorize the participants holding the relevant beneficial
interests to give or take that action, and the participants
would authorize beneficial owners owning through them to give or
take that action or would otherwise act upon the instructions of
beneficial owners holding through them.
Principal or premium, if any, and interest payments on debt
securities represented by a registered global security
registered in the name of a depositary or its nominee will be
made to the depositary or its nominee, as the case may be, as
the registered owner of the registered global security. None of
the Company, the trustee, or any other agent of the Company or
the trustee will have any responsibility or liability for any
aspect of the records relating to payments made on account of
beneficial ownership interests in the registered global security
or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.
We expect that the depositary for any of the securities
represented by a registered global security, upon receipt of any
payment of principal, premium, interest or other distribution of
underlying securities or other property to holders of that
registered global security, will immediately credit
participants accounts in amounts proportionate to their
respective beneficial interests in that registered global
security as shown on the records of the depositary. We also
expect that payments by participants to owners of beneficial
interests in a registered global security held through
participants will be governed by standing customer instructions
and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered
in street name, and will be the responsibility of
those participants.
If the depositary for any of these securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency
registered under the Exchange Act, and a successor depositary
registered as a clearing agency under the Exchange Act is not
appointed by us within 90 days, we will issue securities in
definitive form in exchange for the registered global security
that had been held by the depositary. In addition, we may, at
any time and in our sole discretion, determine not to have
securities represented by registered global securities and, in
that event, will issue securities in definitive form for the
registered global securities of that series. Any securities
issued in definitive form in exchange for a registered global
security will be registered in the name or names that the
depositary gives to the trustee. It is expected that the
depositarys instructions will be based on directions
received by the depositary from participants with respect to
ownership of beneficial interests in the registered global
security that had been held by the depositary.
PLAN OF
DISTRIBUTION
We may sell debt securities:
(1) through underwriters;
(2) through dealers;
(3) through agents; or
(4) directly to purchasers.
We may directly solicit offers to purchase debt securities, or
agents may be designated to solicit such offers. We will, in the
prospectus supplement relating to such offering, name any agent
that could be viewed
11
as an underwriter under the Securities Act and describe any
commissions that we must pay. Any such agent will be acting on a
best efforts basis for the period of its appointment or, if
indicated in the applicable prospectus supplement, on a firm
commitment basis. Agents, dealers and underwriters may be
customers of, engage in transactions with, or perform services
for us in the ordinary course of business.
The distribution of the debt securities may be effected from
time to time in one or more transactions:
(1) at a fixed price, or prices, which may be changed from
time to time;
(2) at market prices prevailing at the time of sale;
(3) at prices related to such prevailing market
prices; or
(4) at negotiated prices.
Each prospectus supplement will describe the method of
distribution of the debt securities and any applicable
restrictions.
The prospectus supplement with respect to the debt securities of
a particular series will describe the terms of the offering of
the debt securities, including the following:
(1) the name of the agent or any underwriters;
(2) the public offering or purchase price;
(3) any discounts and commissions to be allowed or paid to
the agent or underwriters;
(4) all other items constituting underwriting compensation;
(5) any discounts and commissions to be allowed or paid to
dealers; and
(6) any exchanges on which the debt securities will be
listed.
If any underwriters or agents are utilized in the sale of the
debt securities in respect of which this prospectus is
delivered, we will enter into an underwriting agreement or other
agreement with them at the time of sale to them, and we will set
forth in the prospectus supplement relating to such offering the
names of the underwriters or agents and certain of the terms of
the related agreement with them.
If a dealer is utilized in the sale of the debt securities in
respect of which the prospectus is delivered, we will sell such
debt securities to the dealer, as principal. The dealer may then
resell such securities to the public at varying prices to be
determined by such dealer at the time of resale.
Remarketing firms, agents, underwriters and dealers may be
entitled under agreements which they may enter into with us to
indemnification by us against certain civil liabilities,
including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services
for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will
authorize underwriters or other persons acting as our agents to
solicit offers by certain institutions to purchase debt
securities from us pursuant to delayed delivery contracts
providing for payment and delivery on the date stated in the
prospectus supplement. Each contract will be for an amount not
less than, and the aggregate amount of debt securities sold
pursuant to such contracts shall not be less nor more than, the
respective amounts stated in the prospectus supplement.
Institutions with whom the contracts, when authorized, may be
made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable
institutions and other institutions, but shall in all cases be
subject to our approval. Delayed delivery contracts will not be
subject to any conditions except that:
(1) the purchase by an institution of the debt securities
covered under that contract shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which that
institution is subject; and
(2) if the debt securities are also being sold to
underwriters acting as principals for their own account, the
underwriters shall have purchased such debt securities not sold
for delayed delivery. The
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underwriters and other persons acting as our agents will not
have any responsibility in respect of the validity or
performance of delayed delivery contracts.
Certain of the underwriters and their associates and affiliates
may be customers of, have borrowing relationships with, engage
in other transactions with,
and/or
perform services, including investment banking services, for, us
or one or more of our respective affiliates in the ordinary
course of business.
In order to facilitate the offering of the debt securities, any
underwriters may engage in transactions that stabilize, maintain
or otherwise affect the price of the debt securities or any
other securities the prices of which may be used to determine
payments on such debt securities. Specifically, any underwriters
may overallot in connection with the offering, creating a short
position for their own accounts. In addition, to cover
overallotments or to stabilize the price of the debt securities
or of any such other securities, the underwriters may bid for,
and purchase, the debt securities or any such other securities
in the open market. Finally, in any offering of the debt
securities through a syndicate of underwriters, the underwriting
syndicate may reclaim selling concessions allowed to an
underwriter or a dealer for distributing the debt securities in
the offering if the syndicate repurchases previously distributed
debt securities in transactions to cover syndicate short
positions, in stabilization transactions or otherwise. Any of
these activities may stabilize or maintain the market price of
the debt securities above independent market levels. Any such
underwriters are not required to engage in these activities and
may end any of these activities at any time.
The debt securities may be new issues of securities and may have
no established trading market. The debt securities may or may
not be listed on a national securities exchange. We can make no
assurance as to the liquidity of or the existence of trading
markets for any of the debt securities.
LEGAL
MATTERS
Unless a prospectus supplement indicates otherwise, the validity
of the debt securities in respect of which this prospectus is
being delivered will be passed upon by Wilmer Cutler Pickering
Hale and Dorr LLP.
EXPERTS
The consolidated financial statements and schedule of Analog
Devices, Inc. appearing in Analog Devices, Inc.s Annual
Report
(Form 10-K)
for the year ended November 1, 2008, and the effectiveness
of Analog Devices, Inc.s internal control over financial
reporting as of November 1, 2008 have been audited by
Ernst & Young LLP, independent registered public
accounting firm, as set forth in their reports thereon and
incorporated herein by reference. Such consolidated financial
statements and schedule are incorporated herein by reference in
reliance upon such reports given on the authority of such firm
as experts in accounting and auditing.
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