INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by us with the SEC, are incorporated in this Offer to Purchase by reference and shall be deemed
to be a part hereof, except as superseded or modified:
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(a)
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our
Annual Report on Form 10-K for the year ended December 31, 2016, filed on February 24, 2017;
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(b)
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portions
of our definitive Proxy Statement for our 2017 Annual Meeting of Shareholders filed on March 9, 2017 pursuant to Regulation 14A that are
incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2016;
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(c)
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our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2017, filed on April 27, 2017;
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(d)
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our
Current Reports on Form 8-K filed on February 15, 2017, March 3, 2017, March 9, 2017, March 24, 2017 and April 28, 2017
(except for any portions furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto); and
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(e)
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the
Current Reports of Coca-Cola Refreshments USA, Inc. on Form 8-K filed on July 30, 1991 and February 12, 1992.
All
documents and reports we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15 of the Exchange Act, after the date of this Offer to Purchase and prior to the Offer
Expiration Date shall be deemed incorporated herein by reference and shall be deemed to be a part hereof from the date of filing such documents and reports (other than information in such documents
and reports that is deemed to be furnished and not to be filed). In no event, however, will any of the information that we disclose under Item 2.02 or Item 7.01 of any Current Report on
Form 8-K that we may from time to time file with the SEC be incorporated by reference into, or otherwise be included in, this Offer to Purchase, unless such reports otherwise specify. Any
statement contained in a document incorporated or deemed incorporated by reference herein, or contained in this Offer to Purchase, shall be deemed to be modified or superseded for purposes of this
Offer to Purchase to the extent that a statement contained herein or in any subsequently filed document or report that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Offer to Purchase.
Holders
of CCR Notes may request a copy of these filings (other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing) at no cost, by
contacting the Information Agent at its telephone number set forth on the back cover of this Offer to Purchase.
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ANNEX A
Letter of Transmittal and Consent
With Respect to the Offer to Purchase for Cash Any and All of the Outstanding
Zero Coupon Notes due June 20, 2020 (CUSIP/ISIN: 191219AV6/US191219AV64)
8.500% Debentures due February 1, 2022 (CUSIP/ISIN: 191219AP9/US191219AP96)
8.000% Debentures due September 15, 2022 (CUSIP/ISIN: 191219AQ7/US191219AQ79)
6.750% Debentures due September 15, 2023 (CUSIP/ISIN: 191219AU8/US191219AU81)
7.000% Debentures due October 1, 2026 (CUSIP/ISIN: 191219AW4/US191219AW48)
6.950% Debentures due 2026 (CUSIP/ISIN: 191219AY0/US191219AY04)
6.750% Debentures due 2028 (CUSIP/ISIN: 191219BE3/US191219BE31)
6.700% Debentures due 2036 (CUSIP/ISIN: 191219AX2/US191219AX21)
5.710% Medium-Term Notes (CUSIP/ISIN: 19122EAP7/US19122EAP79)
6.750% Debentures due 2038 (CUSIP/ISIN: 191219BC7/US191219BC74)
and
7.000% Debentures due 2098 (CUSIP/ISIN: 191219BD5/US191219BD57)
of Coca-Cola Refreshments USA, Inc.
and
Solicitation of Consents for the Proposed Amendments to the Existing Indenture
Pursuant to the Prospectus Supplement/Offer to Purchase and Consent Solicitation Statement
dated May 22, 2017
(as the same may be amended or supplemented, the "
Offer to Purchase
")
The Offer for each series of the above-listed notes of CCR (the "CCR Notes") will expire at 11:59 p.m., New York City time, on
June 20, 2017, unless the Offer is extended or earlier terminated by us (such time, as it may be extended or earlier terminated, the "Offer Expiration Date"). The Consent Solicitation for each
series of the CCR Notes will expire at 5:00 p.m., New York City time, on June 5, 2017, unless it is extended or earlier terminated by us (such time, as it may be extended or earlier
terminated, the "Early Tender and Consent Expiration Date"). To tender a series of CCR Notes in the Offer and/or deliver Consents in the Consent Solicitation, Holders
may:
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tender their CCR Notes and thereby deliver the related Consents pursuant to the Offer on or before the Early Tender and
Consent Expiration Date; or
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deliver Consents without tendering their CCR Notes pursuant to the Consent Solicitation on or before the Early Tender
and Consent Expiration Date; or
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tender their CCR Notes (without delivering their Consents) pursuant to the Offer after the Early Tender and Consent
Expiration Date but on or prior to the Offer Expiration Date.
Holders must validly tender, and not validly withdraw, their CCR Notes, and thereby deliver their Consents, on or before the Early Tender and Consent Expiration Date in order
to be eligible to receive the Total Consideration. Holders not tendering CCR Notes pursuant to the Offer who wish to deliver Consents pursuant to the Consent Solicitation must validly deliver their
Consents, and not validly revoke them, on or before the Early Tender and Consent Expiration Date in order to be eligible to receive the Consent Payment.
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The Tender Agent for the Offer and the Consent Solicitation is:
D.F. King & Co., Inc.
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By Hand, Overnight Delivery or Mail
(Registered or Certified Mail Recommended):
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By Facsimile Transmission
(for Eligible Institutions only):
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D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, New York 10005
Attention: Andrew Beck
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D.F. King & Co., Inc.
(212) 709-3328
Attention: Andrew Beck
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Confirm by Telephone:
(212) 269-5552
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Delivery of this Letter of Transmittal and Consent (as it may be amended or supplemented, this "
Letter of
Transmittal
", and together with the Offer to Purchase, the "
Offer and Solicitation Materials
") to an address other than as set
forth above, or transmission of instructions via a facsimile number other than as listed above, will not constitute a valid delivery. The method of delivery of this Letter of Transmittal, any
CCR Notes and all other required documents to the Tender Agent, including delivery through The Depository Trust Company ("
DTC
") and any acceptance or
Agent's Message delivered through DTC's Automated Tender Offer Program ("
ATOP
"), is at the election and risk of Holders (as defined
below).
The
Coca-Cola Company, a Delaware corporation ("
The Coca-Cola Compay,
" "
we,
"
"
our
" or "
us
"), is offering (the "
Offer
") to purchase
for cash any and all of the CCR Notes from each person in whose name the CCR Notes are registered, or their duly designated proxies, including persons who hold CCR Notes through a participant of DTC,
Euroclear Bank S.A./N.V. or Clearstream Banking, société anonyme (collectively, "Participants" and, together with registered holders, the
"
Holders
"), and soliciting (the "
Consent Solicitation
") consents to the Proposed Amendments, which would
modify or remove certain of the covenants and events of default applicable to the indenture governing the CCR Notes (the "Existing Indenture") to substantively conform to the operative covenants and
events of default in the indenture governing The Coca-Cola Company's existing unsecured and unsubordinated debt, upon the terms and subject to the conditions described in the Offer and Solicitation
Materials.
Holders
should carefully review the information set forth in the Offer and Solicitation Materials.
May 22, 2017
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Capitalized terms used herein and not defined herein have the meanings given to them in the Offer to Purchase.
This
Letter of Transmittal is to be completed (i) by a Holder wishing to tender CCR Notes pursuant to the Offer and to deliver Consents pursuant to the Consent Solicitation, in
the case of a Holder tendering on or before the Early Tender and Consent Expiration Date, or (ii) by a Holder wishing to tender CCR Notes pursuant to the Offer and not deliver Consents pursuant
to the Consent Solicitation, in the case of a Holder tendering after the Early Tender and Consent Expiration Date and on or before the Offer Expiration Date, or (iii) by a Holder wishing to
deliver Consents without tendering the related CCR Notes pursuant to the Offer, unless in any case such Holder is executing the tender and/or delivering Consents through ATOP.
A Holder tendering CCR Notes and/or delivering
Consents through ATOP does not need to complete this Letter of Transmittal.
Holders of the CCR Notes must validly tender their CCR Notes on or before the Early Tender and Consent Expiration Date in order to be eligible to receive the
Total Consideration, which includes the Early Tender Premium. Holders who validly tender their CCR Notes after the Early Tender and Consent Expiration Date and on or before the Offer Expiration Date
will be eligible to receive only the
Tender Offer Consideration, namely an amount equal to the Total Consideration less the Early Tender Premium.
Holders whose CCR Notes are accepted for purchase in the Offer will
receive, in addition to the Total Consideration or Tender Offer Consideration, as the case may be, for their CCR Notes purchased in the Offer, Accrued Interest in respect of such CCR Notes from the
last interest payment date for the applicable series of CCR Notes to, but excluding, the Payment Date. Holders who deliver Consents without tendering the related CCR Notes pursuant to the Offer will
not receive any Accrued Interest in respect of such CCR Notes.
Holders not tendering CCR Notes pursuant to the Offer who wish to deliver Consents pursuant to the Consent Solicitation must validly deliver their Consents, and
not validly revoke them, on or before the Early Tender and Consent Expiration Date in order to be eligible to receive the Consent Payment.
Holders
who are tendering and/or delivering Consents by book-entry transfer or book-entry deposit to the Tender Agent's account at DTC may execute their tender and/or deliver their
Consents through DTC's ATOP by transmitting their acceptance to DTC in accordance with DTC's ATOP procedures. DTC will then verify the acceptance of the Offer and/or Consent Solicitation, execute a
book-entry delivery to the Tender Agent's account at DTC, in the case of a tender of CCR Notes, or verify the acceptance of the Consent Solicitation and execute a book-entry deposit to the Tender
Agent's account at DTC, in the case of Consents delivered without tendering the related CCR Notes pursuant to the Offer, and, in either case, send an Agent's Message to the Tender Agent. Delivery of
the Agent's Message by DTC will satisfy the terms of the Offer and/or the Consent Solicitation in lieu of execution and delivery of a Letter of Transmittal by the participant identified in the Agent's
Message. Accordingly, a Holder tendering and/or delivering Consents through ATOP does not need to complete this Letter of Transmittal.
Delivery of this Letter of Transmittal, any CCR Notes and other required documents to DTC or the Dealer Managers does not constitute delivery to the Tender
Agent.
For a description of certain procedures to be followed in order to tender the CCR Notes and deliver Consents (through ATOP or otherwise), see "The Offer and the
Consent SolicitationProcedure for Tendering CCR Notes and Delivering Consents" in the Offer to Purchase and the instructions to this Letter of Transmittal.
The
Offer and the Consent Solicitation are made upon the terms and subject to the conditions set forth in the Offer to Purchase and in this Letter of Transmittal. Holders should
carefully review the information set forth therein and herein. By the execution of this Letter of Transmittal, the undersigned acknowledges receipt of the Offer to Purchase, this Letter of Transmittal
and the instructions hereto.
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CHECK HERE IF CERTIFICATES REPRESENTING CCR NOTES TENDERED AND/OR AS TO WHICH CONSENTS ARE DELIVERED WITHOUT TENDERING THE RELATED CCR NOTES ARE ENCLOSED HEREWITH.
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CHECK HERE IF CCR NOTES TENDERED AND/OR AS TO WHICH CONSENTS ARE DELIVERED WITHOUT TENDERING THE RELATED CCR NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE TENDER AGENT WITH DTC
AND COMPLETE THE FOLLOWING:
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Name of Tendering Institution:
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Account Number:
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Transaction Code Number:
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List
below the CCR Notes to which this Letter of Transmittal relates. If the space provided is inadequate, list the aggregate principal amounts on a separately executed schedule and
affix the schedule to this Letter of Transmittal. Tender of CCR Notes will be accepted only in minimum denominations of $1,000 and integral multiples of $1,000. No alternative, conditional or
contingent tenders or Consents will be accepted. If tendered by a participant in DTC, and if not already printed above, the participant name(s) and address(es) should be printed exactly as such
participant's name appear(s) on a security position listing as the owner of the CCR Notes.
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DELIVERY OF CONSENTS WITHOUT TENDERING THE RELATED CCR NOTES PURSUANT TO THE OFFER
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CHECK HERE IF YOU WISH TO DELIVER CONSENTS WITHOUT TENDERING THE RELATED CCR NOTES PURSUANT TO THE OFFER.
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DESCRIPTION OF CCR NOTES TENDERED AND/OR AS TO WHICH CONSENTS ARE DELIVERED
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Name(s) and Address(es) of Registered
Holder(s) or Name of DTC Participant
and Participant's DTC Account Number
in which CCR Notes are Held
(please fill in if blank)
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Series of CCR
Notes*
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Certificate
Numbers**
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Aggregate
Principal Amount
Represented
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Aggregate
Principal Amount
Tendered and/or
as to Which
Consents are
Delivered***
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*
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Enter
the title of the series of CCR Notes being tendered and/or as to which Consents are being delivered.
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**
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Need
not be completed by Holders tendering or depositing CCR Notes by book-entry transfer.
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***
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Unless
otherwise specified, it will be assumed that the entire aggregate principal amount represented by the CCR Notes described above is being tendered or, in the
case of Consents being delivered without tendering CCR Notes pursuant to the Offer, that such Consents are being delivered with respect to the entire aggregate principal amount represented by the CCR
Notes described above. To the extent that CCR Notes are tendered hereby on or before the Early Tender and Consent Expiration Date, the tender of such CCR Notes also constitutes the delivery of
Consents in respect of such CCR Notes to the Proposed Amendments pursuant to the Consent Solicitation.
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CCR NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies
and Gentlemen:
The
undersigned hereby tenders to The Coca-Cola Company (the "
Company
"), upon the terms and subject to the conditions set forth in the
Offer to Purchase, receipt of which is hereby acknowledged, and in accordance with this Letter of Transmittal, the aggregate principal amount of each series of CCR Notes indicated in the table above
entitled "Description of CCR Notes Tendered and/or as to Which Consents are Delivered" under the column heading "Aggregate Principal Amount Tendered and/or as to Which Consents are Delivered" (or, if
nothing is indicated therein, with respect to the
entire aggregate principal amount represented by each series of CCR Notes described in such table), unless this Letter of Transmittal relates to the delivery of Consents without tendering the related
CCR Notes pursuant to the Offer as indicated by checking the appropriate box above. To the extent that CCR Notes are being tendered hereby on or before the Early Tender and Consent Expiration Date, or
this Letter of Transmittal is being delivered on or before the Early Tender and Consent Expiration Date in connection with the delivery of Consents without tendering the related CCR Notes pursuant to
the Offer as indicated by checking the appropriate box above, the undersigned hereby delivers its written Consent to the Proposed Amendments pursuant to the Consent Solicitation, upon the terms and
subject to the conditions set forth in the Offer to Purchase, in respect of the aggregate principal amount of each series of CCR Notes indicated in the table above entitled "Description of CCR Notes
Tendered and/or as to Which Consents are Delivered" under the column heading "Aggregate Principal Amount Tendered and/or as to Which Consents are Delivered" (or, if nothing is indicated therein, with
respect to the entire aggregate principal amount represented by each series of CCR Notes described in such table). The undersigned acknowledges and agrees that any tender of CCR Notes made hereby may
not be withdrawn, and that any delivery of Consents made hereby may not be revoked, except in accordance with the procedures set forth in the Offer to Purchase.
Subject
to, and effective upon, the acceptance for purchase of, and payment for, the principal amount of any CCR Notes tendered with this Letter of Transmittal in accordance with the
terms and subject to the conditions of the Offer and the Consent Solicitation, the undersigned hereby (a) sells, assigns and transfers to, or upon the order of, the Company or its nominee, all
right, title and interest in and to any and all CCR Notes tendered hereby, (b) waives any and all other rights with respect to such CCR Notes (including, without limitation, any existing or
past defaults and their consequences in respect of such CCR Notes and the Existing Indenture relating thereto) and (c) releases and discharges CCR from any and all claims the undersigned may
have now or may have in the future arising out of or related to such CCR Notes. The undersigned hereby irrevocably constitutes and appoints the Tender Agent as the true and lawful agent and
attorney-in-fact of the undersigned (with full knowledge that the Tender Agent also acts as the agent of CCR) with respect to such CCR Notes, with full powers of substitution and revocation (such
power of attorney being deemed to be an irrevocable power coupled with an interest), in the case of tenders, to (i) present such CCR Notes and all evidences of transfer and authenticity to, or
transfer ownership of such CCR Notes on the account books maintained by DTC to, or upon the order of, CCR, (ii) present such CCR Notes for transfer of ownership on the books of CCR and
(iii) receive all benefits and otherwise exercise all rights of beneficial ownership of such CCR Notes, all in accordance with the terms and conditions of the Offer and the Consent Solicitation
as described in the Offer and Solicitation Materials.
To
the extent that CCR Notes are tendered hereby on or before the Early Tender and Consent Expiration Date, or this Letter of Transmittal is being delivered on or before the Early Tender
and Consent Expiration Date in connection with the delivery of Consents without tendering the related CCR Notes pursuant to the Offer as indicated by checking the appropriate box above, the
undersigned agrees and acknowledges that, by the execution and delivery hereof, the undersigned makes and
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provides
its written Consent, with respect to the principal amount of CCR Notes as to which Consents are delivered hereby, to the Proposed Amendments and to the execution and delivery of the
Supplemental Indenture. The undersigned understands that the Consents provided hereby shall remain in full force and effect unless and until such Consents are revoked in accordance with the procedures
set forth in the Offer to Purchase and this Letter of Transmittal.
The undersigned acknowledges and agrees that any CCR Notes tendered may be validly withdrawn (and the related
Consents validly revoked) at any time on or before the Early Tender and Consent Expiration Date, but not thereafter, by following the procedures set forth in the Offer to Purchase. A valid withdrawal
of tendered CCR Notes on or before the Early Tender and Consent Expiration Date will also constitute the valid revocation of the related Consents. A Holder tendering CCR Notes pursuant to the Offer
may not revoke the Consents relating to such tendered CCR Notes without withdrawing the previously tendered CCR Notes. The undersigned also acknowledges and agrees that Consents may be validly revoked
at any time on or before the Early Tender and Consent Expiration Date, but not thereafter, by following the procedures described herein. A valid revocation of Consents delivered without tendering the
related CCR Notes pursuant to the Offer will also result in the release and return of the deposited CCR Notes to which the Consents related.
The
undersigned acknowledges and agrees that a tender of CCR Notes and/or a delivery of Consents, pursuant to any of the procedures described in the Offer to Purchase and in the
instructions to this Letter of Transmittal and an acceptance of tendered CCR Notes and/or Consents delivered by the Company will constitute a binding agreement between the undersigned and the Company
upon the terms and subject to the conditions of the Offer and the Consent Solicitation, which agreement shall be governed by, and construed in accordance with, the laws of the State of New York. The
undersigned acknowledges, by tendering CCR Notes and/or delivering Consents pursuant to any of the procedures described in the Offer to Purchase and in the instructions to this Letter of Transmittal,
under certain circumstances set forth in the Offer to Purchase, the Company is not required to accept for purchase, or for payment, any of the CCR Notes tendered or Consents delivered. The undersigned
acknowledges that the Company is not required to accept for purchase, or for payment, any CCR Notes tendered after the Offer Expiration Date or any Consents delivered after the Early Tender and
Consent Expiration Date. The Offer Expiration Date and the Early Tender and Consent Expiration Date may be extended or the Offer and/or the Consent Solicitation may be earlier terminated as described
in the Offer to Purchase.
The
undersigned hereby represents and warrants that (a) the undersigned has full power and authority to tender, sell, assign and transfer any CCR Notes tendered hereby and
(b) when any such tendered CCR Notes are accepted for purchase and payment by the Company pursuant to the Offer, the Company will acquire good title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claim or right. To the extent that CCR Notes are hereby tendered on or before the Early Tender and Consent Expiration Date or this
Letter of Transmittal is being delivered on or before the Early Tender and Consent Expiration Date in connection with the delivery of Consents without tendering the related CCR Notes pursuant to the
Offer, the undersigned hereby represents and warrants that the undersigned has full power and authority to deliver Consents with respect to the CCR Notes as to which the Consents are being delivered
hereby. The undersigned will, upon request, execute and deliver any additional documents deemed by the Tender Agent or by
the Company to be necessary or desirable to complete the sale, assignment and transfer of the CCR Notes tendered hereby and/or the delivery of any Consents.
To
the extent that the undersigned is hereby tendering CCR Notes pursuant to the Offer, in consideration for the purchase of the CCR Notes tendered hereby pursuant to the Offer, the
undersigned hereby waives, releases, forever discharges and agrees not to sue the Company or any of its former, current or future directors, officers, employees, trustees, agents, subsidiaries,
affiliates, stockholders, predecessors, successors, assigns or other representatives as to any and all claims,
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demands,
causes of action and liabilities of any kind and under any theory whatsoever, whether known or unknown (excluding any liability arising under U.S. federal securities laws in connection with
the Offer), by reason of any act, omission, transaction or occurrence, that the undersigned ever had, now has or hereafter may have against CCR as a result of or in any manner related to the
undersigned's purchase, ownership or disposition of the CCR Notes pursuant to the Offer or any decline in the value thereof. Without limiting the generality or effect of the foregoing, upon the
purchase of CCR Notes pursuant to the Offer, the Company shall obtain all rights relating to the undersigned's ownership of CCR Notes (including, without limitation, the right to all interest payments
payable on the CCR Notes) and any and all claims relating thereto.
The
undersigned by this Letter of Transmittal (with full knowledge that the Tender Agent also acts as the agent of the Company) also irrevocably appoints the Tender Agent to act as its
agent for the purpose of receiving payment from the Company and transmitting such payment to the undersigned. The undersigned acknowledges and agrees that payment shall be deemed to have been made by
the Company upon the transfer by the Company of the Total Consideration, the Tender Offer Consideration or the Consent Payment, as the case may be, plus, in the case of tendered CCR Notes purchased
pursuant to the Offer, Accrued Interest from the last interest payment date for the applicable series of CCR Notes to, but excluding, the Payment Date, to the Tender Agent or, in accordance with the
Tender Agent's instructions, to DTC. The undersigned further acknowledges and agrees that under no circumstances will interest on the Total Consideration, the Tender Offer Consideration or the Consent
Payment, as the case may be, be paid by the Company by reason of any delay on the part of the Tender Agent in making payment to the Holders entitled thereto or any delay in the allocation or crediting
of monies received by DTC to participants in DTC or in the allocation or crediting of monies received by participants to beneficial owners, and in no event will the Company be liable for interest or
damages in relation to any delay or failure of payment to be remitted to any Holder. No authority conferred or agreed to be conferred by this Letter of Transmittal shall be affected by, and all such
authority shall survive, the death or incapacity of the undersigned, and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, trustees in bankruptcy,
personal and legal representatives, successors and assigns of the undersigned.
For
purposes of the Offer and the Consent Solicitation, the undersigned understands that the Company will be deemed to have accepted for purchase and payment validly tendered CCR Notes
and validly delivered Consents if, as and when the Company gives oral or written notice of acceptance to the Tender Agent. The undersigned understands that the delivery and surrender of the CCR Notes
is not effective, and the risk of loss of the CCR Notes does not pass to the Tender Agent, until receipt by the Tender Agent of this Letter of Transmittal (or a manually signed facsimile of this
Letter of Transmittal), properly completed and duly executed, together with all accompanying evidences of authority and any other required documents in form satisfactory to the Company or receipt of
an Agent's Message. The undersigned understands that the delivery of Consents is not effective unless the CCR Notes as to which Consents relate are either delivered and surrendered in connection with
the tender of such CCR Notes or such CCR Notes are deposited with the Tender Agent pursuant to the terms of the Consent Solicitation. All questions as to the form of documents and validity,
eligibility (including time of receipt), acceptance for purchase and payment, and withdrawal of tendered CCR Notes and delivery and revocation of Consents will be determined by us in our sole
discretion, and our determination will be final and binding absent a finding to the contrary by a court of competent jurisdiction.
Unless
otherwise indicated herein under "Special Issuance Instructions" or "Special Delivery Instructions," the undersigned hereby request(s) that any CCR Notes representing principal
amounts not tendered or not accepted for purchase be issued in the name(s) of the undersigned by credit to the account of DTC. Unless otherwise indicated in this Letter of Transmittal under "Special
Issuance Instructions" or "Special Delivery Instructions," the undersigned hereby request(s) that any checks for
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payment
to be made in respect of the CCR Notes tendered hereby be issued to the order of, and delivered to, the undersigned.
In
the event that the "Special Issuance Instructions" or "Special Delivery Instructions" box below is completed, the undersigned hereby request(s) that any CCR Notes representing
principal amounts not tendered or not accepted for purchase be issued in the name(s) of the person(s) indicated. The undersigned recognizes that the Company has no obligation pursuant to the "Special
Issuance Instructions" box to transfer any CCR Notes from the names of the registered Holder(s) thereof if the Company does not accept for purchase any of the principal amount of such CCR Notes so
tendered. In the event that the "Special Delivery Instructions" box below is completed, the undersigned hereby request(s) that checks for payment to be made in respect of the CCR Notes tendered hereby
be issued to the order of, and be delivered to, the person(s) at the address(es) therein indicated. The undersigned also recognizes that the Company has no obligation under the Special Issuance
Instructions to transfer any CCR Notes from the name of the Holder of those CCR Notes if the Company does not accept for purchase any of the CCR Notes so tendered and that the Company will have no
obligation under the Special Delivery Instructions unless the Holder produces satisfactory evidence that any applicable transfer taxes have been paid.
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SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 2, 4 and 5)
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SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 2, 4 and 5)
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To be completed ONLY in relation to tenders of CCR Notes pursuant to the Offer if CCR Notes in a principal amount not tendered or not accepted for purchase are to be issued in the name of, or checks constituting
payments for the Total Consideration or Tender Offer Consideration, as the case may be, plus Accrued Interest from the last interest payment date for the applicable series of CCR Notes to, but excluding, the Payment Date, are to be issued to the
order of, someone other than the person or persons whose signature(s) appear(s) within this Letter of Transmittal or issued to an address different from that shown in the box entitled "Description of CCR Notes Tendered and/or as to Which Consents are
Delivered" within this Letter of Transmittal.
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To be completed ONLY in relation to tenders of CCR Notes pursuant to the Offer if CCR Notes in a principal amount not tendered or not accepted for purchase or checks constituting payments for the Total Consideration
or Tender Offer Consideration, as the case may be, plus Accrued Interest from the last interest payment date for the applicable series of CCR Notes to, but excluding, the Payment Date, are to be sent to someone other than the person or persons whose
signature(s) appear(s) within this Letter of Transmittal to an address different from that shown in the box entitled "Description of CCR Notes Tendered and/or as to Which Consents are Delivered" within this Letter of Transmittal.
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Issue: (check as applicable)
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Deliver: (check as applicable)
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CCR Notes
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CCR Notes
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Checks
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Checks
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Pay to the order of:
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Pay to the order of:
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Name
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Name
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(Please Print)
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(Please Print)
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Send Payment to:
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Send Payment to:
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Address
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Address
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(Please Print)
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(Please Print)
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Zip Code
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Zip Code
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Taxpayer Identification or Social Security Number
(Please complete IRS Form W-9 attached hereto or appropriate IRS Form W-8, as applicable)
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Taxpayer Identification or Social Security Number
(Please complete IRS Form W-9 attached hereto or appropriate IRS Form W-8, as applicable)
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PLEASE COMPLETE AND SIGN BELOW
(This page is to be completed and signed by all tendering
Holders except Holders executing the tender through DTC's ATOP)
By
completing, executing and delivering this Letter of Transmittal, the undersigned hereby tenders the aggregate principal amount of the series of CCR Notes listed in the box above
labeled "Description of CCR Notes Tendered and/or as to Which Consents are Delivered" under the column heading "Aggregate Principal Amount Tendered and/or as to Which Consents are Delivered" (or, if
nothing is indicated therein, with respect to the entire aggregate principal amount represented by the series of CCR Notes described in such box), unless this Letter of Transmittal relates to the
delivery of Consents without tendering the related CCR Notes pursuant to the Offer as indicated by checking the appropriate box above. To the extent that CCR Notes are being tendered hereby on or
before the Early
Tender and Consent Expiration Date, or this Letter of Transmittal is being delivered on or before the Early Tender and Consent Expiration Date in connection with the delivery of Consents without
tendering the related CCR Notes pursuant to the Offer as indicated by checking the appropriate box above, the undersigned hereby delivers Consents to the Proposed Amendments as an entirety and to the
execution and delivery of the Supplemental Indenture, upon the terms and subject to the conditions set forth in the Offer to Purchase, in respect of the principal amount of the series of CCR Notes
which are the subject of the Consents delivered hereby.
Signature(s)
:
(Must be signed by the registered Holder or, if the CCR Notes are tendered by a participant in DTC, exactly as
such participant's name appears on a security position listing as the owner of such CCR Notes. If signature is by trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, please set forth the full title and see Instruction 1.)
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Address:
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(Including Zip Code)
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Area Code and Telephone Number:
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Taxpayer Identification or Social Security Number:
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PLEASE COMPLETE IRS FORM W-9 ATTACHED TO THIS LETTER OF TRANSMITTAL
(OR APPROPRIATE IRS FORM W-8, AS APPLICABLE)
SIGNATURE GUARANTEE (See Instructions 1 and 6 below)
Certain Signatures Must be Guaranteed by a Medallion Signature Guarantor
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(Name of Medallion Signature Guarantor Guaranteeing Signatures)
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(Address (including Zip Code) and Telephone Number (including Area Code) of Firm)
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(Authorized Signature)
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(Print Name and Title)
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INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer and the Consent Solicitation
1.
Signatures on Letter of Transmittal, Instruments of Transfer and Endorsements.
If this Letter of Transmittal
is signed by a participant in DTC whose name is shown on a security position listing as the owner of the CCR Notes that are the subject of this Letter of Transmittal, the signature must correspond
with the name shown on the security position listing as the owner of such CCR Notes.
If
any of the CCR Notes that are the subject of this Letter of Transmittal are registered in the name of two or more Holders, all such Holders must sign this Letter of Transmittal.
If
this Letter of Transmittal or any CCR Notes or instrument of transfer is signed by a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer of a corporation or
other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to the Company of such person's authority to so act must be
submitted.
When
this Letter of Transmittal is signed by the registered Holders of CCR Notes that are the subject of this Letter of Transmittal (or by a participant in DTC whose name appears on a
security position listing as the owner of the CCR Notes), no separate instruments of transfer are required unless payment for CCR Notes tendered is to be made, or the CCR Notes not tendered or
purchased are to be issued, to a person other than the registered Holders, in which case signatures on the instruments of transfer must be guaranteed by a participant in the Securities Transfer
Agent's Medallion Program (a "
Medallion Signature Guarantor
").
Unless this Letter of Transmittal is signed by the registered Holder(s) of the CCR Notes that are the subject of this Letter of Transmittal (or by a participant
in DTC whose name appears on a security position listing as the owner of such CCR Notes), CCR Notes tendered must be accompanied by appropriate instruments of transfer, and each such instrument of
transfer must be signed exactly as the name or names of the registered Holder(s) appear on such CCR Notes (or as the name of such participant appears on a security position listing as the owner of
such CCR Notes); signatures on each such instrument of transfer must be guaranteed by a Medallion Signature Guarantor, unless the signature is that of a firm that is a member of a registered national
securities exchange or Financial Industry Regulatory Authority, Inc. or is a commercial bank or trust company having an office in the United States (each, an "
Eligible
Institution
").
2.
Signature Guarantees.
Signatures on this Letter of Transmittal must be guaranteed by a Medallion Signature
Guarantor, unless the CCR Notes tendered, and/or as to which Consents are delivered, by this Letter of Transmittal are tendered and/or delivered (i) by a registered Holder of CCR Notes (or by a
participant in DTC whose name appears on a security position listing as the owner of the CCR Notes) who has not completed, in the case of a tender of CCR Notes, any of the boxes entitled "Special
Payment Instructions" or "Special Delivery Instructions" on this Letter of Transmittal, or (ii) for the account of an Eligible Institution. If the CCR Notes are registered in the name of a
person other than the signatory on this Letter of Transmittal or, in connection with a tender of CCR Notes, if CCR Notes not accepted for purchase or not tendered are to be returned to a person other
than the registered Holder, then the signature on this Letter of Transmittal accompanying the tendered CCR Notes must be guaranteed by a Medallion Signature Guarantor as described above. Beneficial
owners whose CCR Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee must contact that broker, dealer, commercial bank, trust company or other nominee
if they desire to tender CCR Notes. See "The Offer and the Consent SolicitationProcedure for Tendering CCR Notes and Delivering ConsentsSignature Guarantee" in the Offer to
Purchase. See Instruction 1.
3.
Partial Tenders and Consents.
CCR Notes may be tendered pursuant to the Offer, and Consents may be delivered
pursuant to the Consent Solicitation, only in minimum denominations of $1,000 and integral multiples of $1,000. Tendered CCR Notes and Consents delivered will likewise only
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be
accepted in minimum denominations of $1,000 and integral multiples of $1,000. If less than the entire aggregate principal amount of any CCR Notes evidenced by a submitted certificate is tendered,
the tendering Holder must fill in the principal amount tendered in the last column of the box entitled "Description of CCR Notes Tendered and/or as to Which Consents are Delivered" in this Letter of
Transmittal. The entire aggregate principal amount represented by the certificates for all CCR Notes delivered to the Tender Agent will be deemed to have been tendered, unless otherwise indicated,
and, if the tender is being made on or before the Early Tender and Consent Expiration Date or Consents are being delivered on or before the Early Tender and Consent Expiration Date without tendering
the related CCR Notes, Consents will be deemed to have been delivered in respect of all such CCR Notes. In the case of Consents delivered without tendering CCR Notes pursuant to the Offer, Consents
will be deemed to have been delivered with respect to the entire aggregate principal amount represented by the related CCR Notes which are deposited with the Tender Agent, unless otherwise indicated.
If the entire aggregate principal amount of all CCR Notes is not tendered or not accepted for purchase, certificates for the principal amount of CCR Notes not tendered or not accepted for purchase
will be sent (or, if tendered by book-entry transfer, returned by credit to the account at DTC designated in this Letter of Transmittal) to the Holder unless otherwise provided in the appropriate box
on this Letter of Transmittal (see Instruction 4) promptly after the CCR Notes are accepted for purchase.
4.
Special Issuance and Special Delivery Instructions.
Tendering Holders should indicate in the applicable box
or boxes the name and address to which CCR Notes for principal amounts not tendered or not accepted for purchase or checks constituting payments for CCR Notes to be purchased are to be issued or sent,
if different from the name and address of the registered Holder signing this Letter of Transmittal. In the case of issuance in a different name, the taxpayer identification or social security number
of the person named must also be indicated. If no instructions are given, CCR Notes not tendered or not accepted for purchase will be returned to the registered Holder of the CCR Notes tendered.
Holders of CCR Notes tendering by book-entry transfer will have CCR Notes not tendered or not accepted for purchase returned by crediting their account at DTC. The Company will have no obligation
under the Special Issuance Instructions or Special Delivery Instructions unless the Holder produces satisfactory evidence that any applicable transfer taxes have been paid.
5.
Transfer Taxes.
Except as set forth in Instruction 4 and this Instruction 5, the Company will
pay or cause to be paid any transfer taxes with respect to the transfer and sale of the CCR Notes to it, or to its order, pursuant to the Offer. If payment is to be made to, or if the CCR Notes not
tendered or purchased are to be registered in the name of, any persons other than the registered owners, or if the tendered CCR Notes are registered in the name of any persons other than the persons
signing this Letter of Transmittal, the amount of any transfer taxes (whether imposed on the registered Holder or such other person) payable on account of the transfer to such other person will be
deducted from the payment unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted.
6.
Withdrawal and Revocation Rights.
Any CCR Notes tendered pursuant to the Offer may be validly withdrawn and
the related Consents validly revoked, and any Consents delivered without tendering the
related CCR Notes pursuant to the Offer may be validly revoked, at any time on or before the Early Tender and Consent Expiration Date, but not thereafter, by following the procedures described in the
Offer to Purchase. A valid withdrawal on or before the Early Tender and Consent Expiration Date of CCR Notes tendered pursuant to the Offer will also constitute the valid revocation of the related
Consent. A Holder may not revoke Consents related to tendered CCR Notes without withdrawing such previously tendered CCR Notes to which such Consents relate. Tenders of CCR Notes may not be withdrawn,
and deliveries of related Consents may not be revoked, after the Early Tender and Consent Expiration Date.
For
a withdrawal of CCR Notes and/or revocation of Consents to be effective, a written or facsimile transmission notice of withdrawal and revocation, or a properly transmitted "Request
Message" through ATOP, must be timely received by the Tender Agent at its address or facsimile
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number
set forth on the back cover of the Offer to Purchase on or before the Early Tender and Consent Expiration Date. The withdrawal and/or revocation notice
must:
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specify (a) the name of the Holder who tendered the CCR Notes to be withdrawn and/or delivered the Consents to be revoked and, if
different, the name of the registered Holder of such CCR Notes or (b) in the case of CCR Notes tendered by book-entry transfer or CCR Notes deposited in relation to Consents delivered without
tendering the related CCR Notes pursuant to the Offer, the name of the participant for whose account such CCR Notes were tendered and/or consents were delivered and such participant's account number
at DTC to be credited with the withdrawn CCR Notes or with CCR Notes deposited in relation to a revoked Consent;
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contain a description of the CCR Notes to be withdrawn and/or Consents to be revoked (including the principal amount of the CCR Notes to be
withdrawn and/or Consents to be revoked); and
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(a) be signed by the Holder of the CCR Notes in the same manner as the original signature on this Letter of Transmittal, including any required
signature guarantees or (b) in the case of CCR Notes tendered and/or consents delivered by a DTC participant through ATOP, be signed by such participant in the same manner as the participant's
name is listed on the applicable Agent's Message.
The
signature on the notice of withdrawal and/or revocation must be guaranteed by a Medallion Signature Guarantor unless such CCR Notes have been tendered and/or the related Consents
have been delivered for the account of an Eligible Institution or by a registered Holder who has not completed either the "Special Payment Instructions" or "Special Delivery Instructions" boxes.
Withdrawal of tenders of CCR Notes and/or revocation of Consents may not be rescinded, and any CCR Notes validly withdrawn and/or Consents validly revoked will thereafter be deemed not validly
tendered or validly delivered, as the case may be, for purposes of the Offer and the Consent Solicitation. Validly withdrawn CCR Notes may, however, be re-tendered, and related Consents re-delivered,
by following one of the procedures described in the Offer to Purchase at any time on or before the Offer Expiration Date or the Early Tender and Consent Expiration Date, as the case may be. Any CCR
Notes re-tendered after the Early Tender and Consent Expiration Date will only receive the Tender Offer Consideration. Consents may not be delivered after the Early Tender and Consent Expiration Date.
7.
Taxpayer Identification Number.
Each Holder (or other payee) using this Letter of Transmittal that is a U.S.
person (including a U.S. resident alien) is required (i) to provide the Tender Agent with a correct taxpayer identification number ("
TIN
"), which
TIN, in the case of a Holder who is an individual, is his or her social security number, and with certain other information, on the attached IRS Form W-9, and to certify that the Holder (or
other payee, as applicable) is not subject to backup withholding or (ii) to otherwise establish a basis for exemption from backup withholding. Failure to provide the Tender Agent with the
correct TIN or an adequate basis for an exemption from backup withholding may subject the tendering and/or consenting Holder (or other payee, as applicable) to a $50 penalty imposed by the Internal
Revenue Service ("
IRS
") and may result in backup withholding on payments made to the Holder or other payee, currently at a rate of 28%. A tendering
and/or consenting Holder that is a nonresident alien or a foreign entity must submit the appropriate completed IRS Form W-8 to avoid backup withholding. The appropriate form may be obtained
from the Tender Agent or via the IRS website at www.irs.gov. See "Important Tax Information" below.
8.
Irregularities.
All questions as to the form of documents and validity, eligibility (including time of
receipt), acceptance for purchase and payment and withdrawal of tendered CCR Notes and delivery and revocation of Consents will be determined by us in our sole discretion, and our determination will
be final and binding absent a finding to the contrary by a court of competent jurisdiction. We reserve
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the
absolute right to reject any and all tenders of CCR Notes and/or deliveries of Consents that we determine are not in proper form or for which the acceptance for purchase or payment may, in the
opinion of our counsel, be unlawful. We also reserve the absolute right in our sole discretion to waive any of the conditions of the Offer and the Consent Solicitation or any defect or irregularity in
the tender of CCR Notes or delivery of Consents of any particular Holder, whether or not similar conditions, defects or irregularities are waived in the case of other Holders. A waiver of any defect
or irregularity with respect to the tender of one CCR Note or the delivery of one Consent shall not constitute a waiver of the same or any other defect or irregularity with respect to the tender of
any other CCR Note or Consent unless we expressly provide otherwise. Any defect or irregularity in connection with tenders of CCR Notes or deliveries of Consents must be cured within such time as we
may determine, unless waived by us in our sole discretion. Tenders of CCR Notes and deliveries of Consents shall not be deemed to have been made until all defects and irregularities have been waived
by us or cured. None of ITC Holdings, the Dealer Managers, the Information Agent, the Tender Agent nor any of our or their affiliates, nor any other person will be under any duty to give notice of any
defects or irregularities in tenders or any notices of withdrawal or will incur any liability for failure to give any such notice.
9.
Requests for Assistance or Additional Copies.
Any questions or requests for assistance relating to the Offer
and the Consent Solicitation may be directed to the Dealer Managers or the Information Agent at their respective addresses and telephone numbers set forth on the back cover of the Offer to Purchase.
Requests for additional copies of the Offer to Purchase or this Letter of Transmittal may be directed to the Information Agent. A Holder may also contact its broker, dealer, commercial bank, trust
company or other nominee for assistance concerning the Offer and the Consent Solicitation.
10.
Waiver of Conditions.
The Company expressly reserves the right prior to the Offer Expiration Date to waive
(or to seek to waive) any of the conditions of the Offer and the Consent Solicitation, in whole or in part, at any time and from time to time.
11.
Mutilated, Lost, Stolen or Destroyed Certificates.
If a Holder desires to tender CCR Notes, but the
certificates evidencing such CCR Notes have been mutilated, lost, stolen or destroyed, such Holder should contact the Trustee to receive information about the procedures for obtaining replacement
certificates for CCR Notes.
12.
Offer Expiration Date and the Early Tender and Consent Expiration Date; Delivery of this Letter of Transmittal and Certificates for CCR Notes or
Book-Entry Confirmations.
The Offer Expiration Date for the Offer will be 11:59 p.m., New York City time, on June 20, 2017, as such date and time may
be extended or earlier terminated by the Company in its sole discretion. The Early Tender and Consent Expiration Date for the Consent Solicitation will be 5:00 p.m., New York City time, on
June 5, 2017, as such date and time may be extended or earlier terminated by the Company in its sole discretion.
The method of delivery of this Letter of Transmittal, CCR Notes and all other required documents to the Tender Agent, including delivery through DTC and any
acceptance or Agent's Message delivered through ATOP, is at the election and risk of Holders.
If such delivery is by mail, it is suggested that Holders use properly insured
registered mail, return receipt requested, and that the mailing be sufficiently in advance of the Offer Expiration Date, or if the tendering Holder wishes to be eligible to receive the Total
Consideration, including the Early Tender Premium, sufficiently in advance of the Early Tender and Consent Expiration Date, to permit delivery to the Tender Agent prior to such date. Except as
otherwise provided below, the delivery will be deemed made when actually received or confirmed by the Tender Agent. This Letter of Transmittal and the CCR Notes should be sent only to the Tender
Agent, not to the Company, DTC or the Dealer Managers.
All
tendering Holders, by execution of this Letter of Transmittal, waive any right to receive any notice of the acceptance of their CCR Notes for purchase.
There
are no guaranteed delivery procedures provided for by the Company in conjunction with the Offer. Holders must timely tender their CCR Notes in accordance with the procedures set
forth in the Offer to Purchase.
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IMPORTANT TAX INFORMATION
Each Holder is encouraged to seek advice based on its particular circumstances from its tax advisor.
General
Under U.S. federal income tax law, a Holder that is a U.S. person (including a U.S. resident alien) whose tendered CCR Notes are accepted for
purchase and/or who delivers
Consents is required to provide the Tender Agent with such Holder's current TIN and make certain certifications on the attached IRS Form W-9, or, alternatively, to establish another basis for
an exemption from backup withholding. If such Holder is an individual, the TIN is his or her social security number. If the Tender Agent is not provided with the correct TIN or if the required
certifications are not made, the Holder or other payee may be subject to a $50 penalty imposed by the IRS. In addition, any payment made to such Holder or other payee pursuant to the Offer and/or the
Consent Solicitation may be subject to backup withholding.
Certain
Holders (including, among others, certain foreign persons) are generally not subject to these backup withholding and reporting requirements. In order for a foreign Holder to
qualify as an exempt recipient, such Holder must submit to the Tender Agent the appropriate IRS Form W-8 (e.g., Form W-8BEN, Form W-8BEN-E, Form W-8ECI or
Form W-8IMY), signed under penalties of perjury, attesting to his or her exempt status. An IRS Form W-8 may be obtained from the Tender Agent or via the IRS website at www.irs.gov.
If
backup withholding applies, the Tender Agent is required to withhold at the applicable rate (28% on the date of the Letter of Transmittal) on any payment made to the Holder or other
payee. Backup withholding is not an additional tax. Rather, the U.S. federal income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the IRS provided that the required information is properly furnished to the IRS.
Purpose of IRS Form W-9
To prevent backup withholding on any payment made to a Holder or other payee with respect to the CCR Notes purchased pursuant to the Offer
and/or the Consent Solicitation, if the Holder does not otherwise establish an exemption from backup withholding, the Holder is required to notify the Tender Agent of the Holder's current TIN (or the
TIN of any other payee) by completing the attached IRS Form W-9 and certifying that (i) the TIN provided on the attached IRS Form W-9 is correct (or that such Holder is awaiting a
TIN), (ii) the Holder is not subject to backup withholding because (a) the Holder is exempt from backup withholding, (b) the Holder has not been notified by the IRS that the
Holder is subject to backup withholding as a result of failure to report all interest or dividends or (c) the IRS has notified the Holder that the Holder is no longer subject to backup
withholding and (iii) the Holder is a U.S. person (including a U.S. resident alien) for U.S. federal income tax purposes. Foreign Holders should complete, sign and submit an appropriate IRS
Form W-8 as described above to prevent backup withholding.
What Number to Give the Tender Agent
The Holder is required to give the Tender Agent the TIN (e.g., social security number or employer identification number) of the
registered owner of the CCR Notes that are the subject of this Letter of Transmittal. If the CCR Notes are registered in more than one name or are not registered in the name of the actual owner,
consult the enclosed IRS Form W-9 for additional guidance on which number to report.
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Form
W-9
(Rev. December 2014)
Department of the Treasury
Internal Revenue Service
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Request for Taxpayer
Identification Number and Certification
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Give Form to the
requester. Do not
send to the IRS.
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Print or type
See
Specific Instructions
on page 2.
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1
Name (as shown on your income tax return). Name is required on this line; do not leave this line blank.
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2
Business name/disregarded entity name, if different from above
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3
Check appropriate box for federal tax classification; check only
one
of the following seven boxes:
o
Individual/sole proprietor or
o
C Corporation
o
S Corporation
o
Partnership
o
Trust/estate
single-member LLC
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4
Exemptions (codes apply only to
certain entities, not individuals; see
instructions on page 3):
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Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=partnership)
>
_____
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Exempt payee code (if any) _____
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Note.
For a single-member LLC that is disregarded, do not check LLC; check the appropriate box in the line above for the tax
classification of the single-member owner.
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Exemption from FATCA reporting
code (if any) _____
(Applies to accounts maintained outside the U.S.)
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Other (see instructions)
>
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5
Address (number, street, and apt. or suite no.)
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Requester's name and address (optional)
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6
City, state, and ZIP code
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7
List account number(s) here (optional)
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Part I
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Taxpayer Identification Number (TIN)
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Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social
security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is your employer
identification number (EIN). If you do not have a number, see
How to get a TIN
on page 3.
Note.
If the account is in more than one name, see the instructions for line 1 and the chart on page 4 for guidelines on whose number to
enter.
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Social security number
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Employer identification number
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Part II
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Certification
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Under penalties of perjury, I certify that:
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1.
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The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and
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2.
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I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and
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3.
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I am a U.S. citizen or other U.S. person (defined below); and
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4.
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The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct.
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Certification instructions.
You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or
abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to
sign the certification, but you must provide your correct TIN. See the instructions on page 3.
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Sign
Here
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Signature of
U.S. person
>
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Date
>
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General Instructions
Section
references are to the Internal Revenue Code unless otherwise noted.
Future developments.
Information about developments affecting Form W-9 (such as legislation enacted after we release it) is at
www.irs.gov/fw9
.
Purpose of Form
An
individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social
security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the
amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following:
Form 1099-INT (interest earned or paid)
Form 1099-DIV (dividends, including those from stocks or mutual funds)
Form 1099-MISC (various types of income, prizes, awards, or gross proceeds)
Form 1099-B (stock or mutual fund sales and certain other transactions by brokers)
Form 1099-S (proceeds from real estate transactions)
Form 1099-K (merchant card and third party network transactions)
Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition)
Form 1099-C (canceled debt)
Form 1099-A (acquisition or abandonment of secured property)
Use
Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN.
If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding.
See
What is
backup withholding?
on page 2.
By
signing the filled-out form, you:
1.
Certify that the TIN you are giving is correct (or you are waiting for a number to be issued),
2.
Certify that you are not subject to backup withholding, or
3.
Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income
from a U.S. trade or business is not subject to the withholding tax on foreign partners' share of effectively connected income, and
4.
Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See
What is FATCA
reporting?
on page 2 for further information.
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Cat. No. 10231X
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Form
W-9
(Rev. 12-2014)
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Table of Contents
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Form W-9 (Rev. 12-2014)
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Page
S-66
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Note.
If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the
requester's form if it is substantially similar to this Form W-9.
Definition of a U.S. person.
For federal tax purposes, you are considered a U.S. person if you are:
An individual who is a U.S. citizen or U.S. resident alien;
A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States;
An estate (other than a foreign estate); or
A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships.
Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under
section 1446 on any foreign partners' share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under
section 1446 require a partnership to presume that a partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a
partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of
partnership income.
In
the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net
income from the partnership conducting a trade or business in the United States:
In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the entity;
In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the trust; and
In the case of a U.S. trust (other than a grantor trust), the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust.
Foreign person.
If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use
Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).
Nonresident alien who becomes a resident alien.
Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate
U.S. tax on certain types of income. However, most tax treaties contain a provision known as a "saving clause." Exceptions specified in the saving clause may permit an exemption from tax to continue
for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes.
If
you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must
attach a statement to Form W-9 that specifies the following five items:
1.
The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.
2.
The treaty article addressing the income.
3.
The article number (or location) in the tax treaty that contains the saving clause and its exceptions.
4.
The type and amount of income that qualifies for the exemption from tax.
5.
Sufficient facts to justify the exemption from tax under the terms of the treaty article.
Example.
Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese
student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However,
paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a
resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax
on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption.
If
you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233.
Backup Withholding
What is backup withholding?
Persons making certain payments to you must under certain conditions withhold and pay to the IRS 28% of such payments.
This is called "backup withholding." Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties,
nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup
withholding.
You
will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and
dividends on your tax return.
Payments you receive will be subject to backup withholding if:
1.
You do not furnish your TIN to the requester,
2.
You do not certify your TIN when required (see the Part II instructions on page 3 for details),
3.
The IRS tells the requester that you furnished an incorrect TIN,
4.
The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends
only), or
5.
You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only).
Certain
payees and payments are exempt from backup withholding. See
Exempt payee code
on page 3 and the separate Instructions for the
Requester of Form W-9 for more information.
Also
see
Special rules for partnerships
above.
What is FATCA reporting?
The
Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all United States account holders that are specified United States persons. Certain
payees are exempt from FATCA reporting. See
Exemption from FATCA reporting code
on page 3 and the Instructions for the Requester of Form W-9
for more information.
Updating Your Information
You
must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this
person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must
furnish a new Form W-9 if the name or TIN changes for the account; for example, if the grantor of a grantor trust dies.
Penalties
Failure to furnish TIN.
If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your
failure is due to reasonable cause and not to willful neglect.
Civil penalty for false information with respect to withholding.
If you make a false statement with no reasonable basis that results in no backup
withholding, you are subject to a $500 penalty.
Criminal penalty for falsifying information.
Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines
and/or imprisonment.
Misuse of TINs.
If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties.
Specific Instructions
Line 1
You must enter one of the following on this line;
do not
leave this line blank. The name should match the name on
your tax return.
If
this Form W-9 is for a joint account, list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9.
a.
Individual.
Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security
Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name.
Note. ITIN applicant:
Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as
the name you entered on the Form 1040/1040A/1040EZ you filed with your application.
b.
Sole proprietor or single-member LLC.
Enter your individual name as shown on your 1040/1040A/1040EZ on line 1. You may enter your
business, trade, or "doing business as" (DBA) name on line 2.
c.
Partnership, LLC that is not a single-member LLC, C Corporation, or S Corporation.
Enter the entity's name as shown
on the entity's tax return on line 1 and any business, trade, or DBA name on line 2.
d.
Other entities.
Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown
on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on line 2.
e.
Disregarded entity.
For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a
"disregarded entity." See Regulations section 301.7701-2(c)(2)(iii). Enter the owner's name on line 1. The name of the entity entered on line 1 should never be a disregarded entity. The name on
line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax
purposes has a single owner that is a U.S. person, the U.S. owner's name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first
owner that is not disregarded for federal tax purposes. Enter the disregarded entity's name on line 2, "Business name/disregarded entity name." If the owner of the disregarded entity is a
foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN.
Line 2
If you have a business name, trade name, DBA name, or disregarded entity name, you may enter it on line 2.
Line 3
Check the appropriate box in line 3 for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box in
line 3.
Limited Liability Company (LLC).
If the name on line 1 is an LLC treated as a partnership for U.S. federal tax purposes, check the "Limited
Liability Company" box and enter "P" in the space provided. If the LLC has filed Form 8832 or 2553 to be taxed as a corporation, check the "Limited Liability Company" box and in the space
provided enter "C" for C corporation or "S" for S corporation. If it is a single-member LLC that is a disregarded entity, do not check the "Limited Liability Company" box; instead check
the first box in line 3 "Individual/sole proprietor or single-member LLC."
Line 4, Exemptions
If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space in line 4 any code(s) that may apply to you.
Exempt payee code.
Generally, individuals (including sole proprietors) are not exempt from backup withholding.
Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends.
Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network transactions.
Corporations are not exempt from backup withholding with respect to attorneys' fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are
not exempt with respect to payments reportable on Form 1099-MISC.
The
following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space in line 4.
1 An
organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account
satisfies the requirements of section 401(f)(2)
2 The
United States or any of its agencies or instrumentalities
3 A
state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
4 A
foreign government or any of its political subdivisions, agencies, or instrumentalities
5 A
corporation
6 A
dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession
7 A
futures commission merchant registered with the Commodity Futures Trading Commission
8 A
real estate investment trust
9 An
entity registered at all times during the tax year under the Investment Company Act of 1940
10 A
common trust fund operated by a bank under section 584(a)
11 A
financial institution
12 A
middleman known in the investment community as a nominee or custodian
13 A
trust exempt from tax under section 664 or described in section 4947
The
following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13.
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IF the payment is for . . .
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THEN the payment is exempt for . . .
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Interest and dividend payments
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All exempt payees except
for 7
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Broker transactions
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Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012.
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Barter exchange transactions and patronage dividends
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Exempt payees 1 through 4
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Payments over $600 required to be reported and direct sales over $5,000
1
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Generally, exempt payees
1 through 5
2
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Payments made in settlement of payment card or third party network transactions
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Exempt payees 1 through 4
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1
See Form 1099-MISC, Miscellaneous Income, and its instructions.
2
However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys' fees,
gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency.
Exemption from FATCA reporting code.
The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons
submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the
United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate
that a code is not required by providing you with a Form W-9 with "Not Applicable" (or any similar indication) written or printed on the line for a FATCA exemption code.
A An
organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37)
B The
United States or any of its agencies or instrumentalities
C A
state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
D A
corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations
section 1.1472-1(c)(1)(i)
E A
corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i)
F A
dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and
options) that is registered as such under the laws of the United States or any state
G A
real estate investment trust
H A
regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment
Company Act of 1940
I A
common trust fund as defined in section 584(a)
J A
bank as defined in section 581
K A
broker
L A
trust exempt from tax under section 664 or described in section 4947(a)(1)
M A
tax exempt trust under a section 403(b) plan or section 457(g) plan
Note.
You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be
completed.
Line 5
Enter your address (number, street, and apartment or suite number). This is where the requester of this Form W-9 will mail your information returns.
Line 6
Enter your city, state, and ZIP code.
Part I. Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box.
If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual
taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see
How to get a TIN
below.
If
you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN. However, the IRS prefers that you use your SSN.
If
you are a single-member LLC that is disregarded as an entity separate from its owner (see
Limited Liability Company (LLC)
on this page),
enter the owner's SSN (or EIN, if the owner has one). Do not enter the disregarded entity's EIN. If the LLC is classified as a corporation or partnership, enter the entity's EIN.
Note.
See the chart on page 4 for further clarification of name and TIN combinations.
How to get a TIN.
If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card,
from your local SSA office or get this form online at
www.ssa.gov
. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application
for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by
accessing the IRS website at
www.irs.gov/businesses
and clicking on Employer Identification Number (EIN) under Starting a Business. You can get
Forms W-7 and SS-4 from the IRS by visiting IRS.gov or by calling 1-800-TAX-FORM (1-800-829-3676).
If
you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write "Applied For" in the space for the TIN, sign and date the form, and give it to the
requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester
before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide
your TIN to the requester.
Note.
Entering "Applied For" means that you have already applied for a TIN or that you intend to apply for one soon.
Caution:
A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8.
Part II. Certification
To
establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if items 1, 4, or 5 below
indicate otherwise.
For
a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must
sign. Exempt payees, see
Exempt payee code
earlier.
Signature requirements.
Complete the certification as indicated in items 1 through 5 below.
1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983.
You must give your
correct TIN, but you do not have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983.
You must
sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in
the certification before signing the form.
3. Real estate transactions.
You must sign the certification. You may cross out item 2 of the certification.
4. Other payments.
You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have
previously given an incorrect TIN. "Other payments" include payments made in the course of the requester's trade or business for rents, royalties, goods (other than bills for merchandise), medical and
health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third party network transactions, payments to certain
fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).
5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under
section 529), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions.
You must give your correct TIN, but you do not have to sign
the certification.
What Name and Number To Give the Requester
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For this type of account:
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Give name and SSN of:
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1.
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Individual
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The individual
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2.
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Two or more individuals (joint account)
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The actual owner of the account or, if combined funds, the first individual on the account
1
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3.
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Custodian account of a minor (Uniform Gift to Minors Act)
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The minor
2
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4.
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a. The usual revocable savings trust (grantor is also trustee)
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The grantor-trustee
1
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b. So-called trust account that is not a legal or valid trust under state law
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The actual owner
1
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5.
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Sole proprietorship or disregarded entity owned by an individual
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The owner
3
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6.
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Grantor trust filing under Optional Form 1099 Filing Method 1 (see Regulation section 1.671-4(b)(2)(i)(A))
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The grantor*
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For this type of account:
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Give name and EIN of:
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7.
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Disregarded entity not owned by an individual
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The owner
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8.
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A valid trust, estate, or pension trust
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Legal entity
4
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9.
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Corporation or LLC electing corporate status on Form 8832 or Form 2553
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The corporation
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10.
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Association, club, religious, charitable, educational, or other tax-exempt organization
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The organization
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11.
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Partnership or multi-member LLC
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The partnership
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12.
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A broker or registered nominee
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The broker or nominee
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13.
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Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments
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The public entity
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14.
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Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulation section 1.671-4(b)(2)(i)(B))
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The trust
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1
List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that
person's number must be furnished.
2
Circle the minor's name and furnish the minor's SSN.
3
You must show your individual name and you may also enter your business or DBA name on the
"Business name/disregarded entity" name line. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN.
4
List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN
of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see
Special rules for partnerships
on page 2.
*
Note.
Grantor also must provide a Form W-9
to trustee of trust.
Note.
If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.
Secure Your Tax Records from Identity Theft
Identity
theft occurs when someone uses your personal information such as your name, SSN, or other identifying information, without your permission, to commit fraud or other crimes. An identity thief
may use your SSN to get a job or may file a tax return using your SSN to receive a refund.
To
reduce your risk:
Protect your SSN,
Ensure your employer is protecting your SSN, and
Be careful when choosing a tax preparer.
If
your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter.
If
your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit
report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039.
For
more information, see Publication 4535, Identity Theft Prevention and Victim Assistance.
Victims
of identity theft who are experiencing economic harm or a system problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may
be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059.
Protect yourself from suspicious emails or phishing schemes.
Phishing is the creation and use of email and websites designed to mimic legitimate business
emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information
that will be used for identity theft.
The
IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords,
or similar secret access information for their credit card, bank, or other financial accounts.
If
you receive an unsolicited email claiming to be from the IRS, forward this message to
phishing@irs.gov
. You may also report misuse of the
IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at:
spam@uce.gov
or contact them at
www.ftc.gov/idtheft
or 1-877-IDTHEFT (1-877-438-4338).
Visit
IRS.gov to learn more about identity theft and how to reduce your risk.
Privacy Act Notice
Section 6109
of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report
interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA,
Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include
giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws.
The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to
combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend,
and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.
Table of Contents
Any questions or requests for assistance relating to the Offer and the Consent Solicitation may be directed to the Dealer Managers or the
Information Agent at their respective addresses and telephone numbers as set forth below. Any requests for additional copies of this Letter of Transmittal, the Offer to Purchase or related documents
may be directed to the Information Agent. A Holder may also contact such Holder's broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer and the Consent
Solicitation.
The Information Agent for the Offer and the Consent Solicitation is:
D.F. King & Co., Inc.
D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, New York 10005
Banks
and Brokers, Call Collect:
(212) 269-5550
All Others Call Toll-Free:
(888) 605-1956
Email: KO@dfking.com
The Dealer Managers for the Offer and the Solicitation Agents for the Consent Solicitation are:
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BofA Merrill Lynch
|
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J.P. Morgan Securities LLC
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Santander Investment
Securities Inc.
|
214 North Tryon Street, 14th Floor
Charlotte, North Carolina 28255
U.S. Toll-Free: (888) 292-0070
Collect: (980) 683-3215
Attention: Liability Management Group
|
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383 Madison Avenue
New York, New York 10179
U.S. Toll-Free: (866) 834-4666
Collect: (212) 834-4811
Attention: Liability Management Group
|
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45 East 53
rd
Street
New York, New York 10022
U.S. Toll-Free: (855)-404-3636
Collect: (212)-940-1442
E-Mail: liabilitymanagement@santander.us
Attention: Liability Management Group
|
S-69
Table of Contents
ANNEX B
FORMULA FOR DETERMINING THE TOTAL CONSIDERATION AND ACCRUED INTEREST PER $1,000 AGGREGATE PRINCIPAL AMOUNT OF THE CCR NOTES
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Total Consideration
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=
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YLD
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=
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The sum of the yield to maturity on the applicable Reference Security, calculated by the Dealer Managers in accordance with standard market practice, based on the bid price of the applicable Reference Security, as quoted
on the applicable Bloomberg Reference Page at 11:00 a.m., New York City time, on the Price Determination Time, plus the applicable Fixed Spread, expressed as a decimal.
|
CPN
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=
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The contractual annual rate of interest payable on the applicable series of Notes expressed as a decimal.
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N
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=
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The number of scheduled semi-annual interest payments from (but excluding) the Payment Date to (and including) the maturity date.
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S
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=
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The number of days from and including the semi-annual interest payment date immediately preceding the Payment Date up to, but excluding, such Payment Date. The number of days is computed using the
30/360 day-count method.
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/
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=
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The term immediately to the left of the division symbol is divided by the term immediately to the right of the division symbol before any addition or subtraction operations are performed.
|
exp
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=
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The term the left "exp" is raised the power indicated by the term to the right of "exp."
|
N
S
K=1
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=
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The term in the brackets to the right of the summation symbol is separately calculated "N" times (substituting for "K" in that term each whole number between 1 and N, inclusive), and the separate calculations are then
added together.
|
Accrued Interest
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=
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$1,000(CPN/2) (S/180)
|
Tender Offer Consideration
|
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=
|
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Total Consideration minus the applicable Early Tender Premium
|
S-70
Table of Contents
|
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|
Series of CCR Notes
|
|
Hypothetical Total
Consideration as
calculated at
11:00 a.m.,
New York City time,
on May 19, 2017
($)
|
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Zero Coupon Notes due June 20, 2020
(CUSIP/ISIN: 191219AV6/US191219AV64)
|
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951.87
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8.500% Debentures due February 1, 2022
(CUSIP/ISIN: 191219AP9/US191219AP96)
|
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1,285.17
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8.000% Debentures due September 15, 2022
(CUSIP/ISIN: 191219AQ7/US191219AQ79)
|
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1,291.22
|
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6.750% Debentures due September 15, 2023
(CUSIP/ISIN: 191219AU8/US191219AU81)
|
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1,253.06
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7.000% Debentures due October 1, 2026
(CUSIP/ISIN: 191219AW4/US191219AW48)
|
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1,345.59
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6.950% Debentures due 2026
(CUSIP/ISIN: 191219AY0/US191219AY04)
|
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1,345.49
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6.750% Debentures due 2028
(CUSIP/ISIN: 191219BE3/US191219BE31)
|
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1,366.49
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6.700% Debentures due 2036
(CUSIP/ISIN: 191219AX2/US191219AX21)
|
|
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1,425.42
|
|
5.710% Medium-Term Notes
(CUSIP/ISIN: 19122EAP7/US19122EAP79)
|
|
|
1,293.08
|
|
6.750% Debentures due 2038
(CUSIP/ISIN: 191219BC7/US191219BC74)
|
|
|
1,442.11
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7.000% Debentures due 2098
(CUSIP/ISIN: 191219BD5/US191219BD57)
|
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1,636.60
|
|
S-71
Table of Contents
The Tender Agent for the Offer and the Consent Solicitation is:
D.F. King & Co., Inc.
|
|
|
By Hand, Overnight Delivery or Mail
(Registered or Certified Mail Recommended):
|
|
By Facsimile Transmission
(for Eligible Institutions only):
|
D.F. King & Co., Inc.
|
|
D.F. King & Co., Inc.
|
48 Wall Street, 22
nd
Floor
|
|
(212) 709-3328
|
New York, New York 10005
|
|
Attention: Andrew Beck
|
Attention: Andrew Beck
|
|
|
|
|
Confirm by Telephone:
|
|
|
(212) 269-5552
|
Any questions or requests for assistance relating to the Offer and the Consent Solicitation may be directed to the Dealer Managers or the Information Agent at
their respective telephone numbers as set forth below. Any requests for additional copies of this Offer to Purchase, the Letter of Transmittal or related documents may be directed to the Information
Agent. A Holder may also contact such Holder's broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer and the Consent Solicitation.
The Information Agent for the Consent Solicitation is:
D.F. King & Co., Inc.
48 Wall Street, 22
nd
Floor
New York, New York 10005
Banks
and Brokers, Call Collect:
(212) 269-5550
All Others Call Toll-Free:
(888) 605-1956
Email: KO@dfking.com
The Dealer Managers for the Offer and the Solicitation Agents for the Consent Solicitation are:
|
|
|
|
|
BofA Merrill Lynch
|
|
J.P. Morgan Securities LLC
|
|
Santander Investment Securities Inc.
|
214 North Tryon Street, 14th Floor
|
|
383 Madison Avenue
|
|
45 East 53
rd
Street
|
Charlotte, North Carolina 28255
|
|
New York, New York 10179
|
|
New York, New York 10022
|
U.S. Toll-Free: (888) 292-0070
|
|
U.S. Toll-Free: (866) 834-4666
|
|
U.S. Toll-Free: (855)-404-3636
|
Collect: (980) 683-3215
|
|
Collect: (212) 834-4811
|
|
Collect: (212)-940-1442
|
Attention: Liability Management Group
|
|
Attention: Liability Management Group
|
|
E-Mail: liabilitymanagement@santander.us
Attention: Liability Management Group
|
S-72
Table of Contents
PROSPECTUS
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
WARRANTS
DEPOSITARY SHARES
PURCHASE CONTRACTS
GUARANTEES
We may offer, issue and sell from time to time, together or separately:
-
-
debt securities;
-
-
shares of our common stock;
-
-
shares of our preferred stock;
-
-
warrants to purchase debt or equity securities;
-
-
depositary shares;
-
-
purchase contracts; and
-
-
guarantees of debt securities issued by our subsidiaries.
In
addition, selling stockholders to be named in a prospectus supplement may offer, from time to time, shares of our common stock. We may offer and sell these securities to or through
one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis.
This
prospectus describes some of the general terms that may apply to these securities. The specific terms of any securities to be offered will be described in a supplement to this
prospectus. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement carefully before
you make your investment decision. Our common stock is listed on the New York Stock Exchange under the trading symbol "KO." Each prospectus supplement will indicate if the securities offered thereby
will be listed on any securities exchange.
This
prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
You should carefully read and consider the risk factors incorporated by reference into this prospectus from our Annual Report on Form 10-K
for the year ended December 31, 2016, and any subsequent periodic reports and other information that we file with the Securities and Exchange Commission before you invest in our
securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is May 22, 2017.
Table of Contents
TABLE OF CONTENTS
We include cross references to captions elsewhere in this prospectus where you can find related additional information. The following table of
contents tells you where to find these captions.
In
this prospectus, except as otherwise indicated or the context otherwise requires, the terms "Company," "we," "us" and "our" mean The Coca-Cola Company and all entities included in our
consolidated financial statements.
i
Table of Contents
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the "SEC,"
using a "shelf" registration process. Under this shelf process, we may, from time to time, sell:
-
-
debt securities, which may be senior or subordinated and may be convertible;
-
-
shares of our common stock;
-
-
shares of our preferred stock;
-
-
warrants to purchase debt or equity securities;
-
-
depositary shares;
-
-
purchase contracts; and
-
-
guarantees of debt securities issued by our subsidiaries,
either
separately or in units, in one or more offerings. This prospectus provides you with a general description of those securities. In addition, selling stockholders to be named in a prospectus
supplement may offer, from time to time, shares of our common stock. Each time we or selling stockholders sell securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering, including the specific amounts, prices and terms of the securities offered. The prospectus supplement may also add, update or change information contained
in this prospectus. If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the information in the prospectus supplement. You should
read this prospectus and the applicable prospectus supplement together with the additional information described herein under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
You may obtain from the SEC, through the SEC's website or at the SEC offices mentioned in the following paragraph, a copy of the registration
statement on Form S-3, including exhibits, that we have filed with the SEC to register the securities offered under this prospectus. This
prospectus is part of the registration statement and does not contain all the information in the registration statement. You will find additional information about us in the registration statement.
Any statement made in this prospectus concerning a contract or other document of ours is not necessarily complete, and you should read the documents that are filed as exhibits to the registration
statement or otherwise filed with the SEC for a more complete understanding of the document or matter. Each such statement is qualified in all respects by reference to the document to which it refers.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC's website at
http://www.sec.gov
and on our corporate website at
http://www.coca-colacompany.com
. Information on our
website does not constitute part of this prospectus. You may inspect without charge any documents filed by us at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549.
You may obtain copies of all or any part of these materials from the SEC upon the payment of certain fees prescribed by the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the
Public Reference Room. Our SEC filings are also available at the office of the New York Stock Exchange located at 20 Broad Street, New York, New York 10005.
We
"incorporate by reference" into this prospectus documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus. Some information contained in this prospectus updates the information incorporated by reference, and information that we
file subsequently with the SEC will automatically update this prospectus. In other words, in the case of a conflict or inconsistency between information set forth in this prospectus and information
that we
Table of Contents
file
later and incorporate by reference into this prospectus, you should rely on the information contained in the document that was filed later.
We
incorporate by reference into this prospectus the documents listed below and any filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, or the "Exchange Act," after the date of this prospectus and prior to the time that all the securities offered by this prospectus have been issued as described in
this prospectus (other than, in each case, documents or information deemed to have been furnished and not "filed" in accordance with SEC rules):
-
-
our Annual Report on Form 10-K for the year ended December 31, 2016 (filed on February 24, 2017);
-
-
our Quarterly Report on Form 10-Q for the quarter ended March 31, 2017 (filed on April 27, 2017);
-
-
our Current Reports on Form 8-K filed on February 15, 2017, March 3, 2017, March 9, 2017, March 24, 2017 and
April 28, 2017 (except for any portions furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto);
-
-
the portions of our Definitive Proxy Statement for our 2017 Annual Meeting of Shareholders, filed on March 9, 2017 pursuant to
Regulation 14A, that are specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2016; and
-
-
the descriptions of the common stock set forth in our registration statements filed pursuant to Section 12 of the Exchange Act, and any
amendment or report filed for the purpose of updating those descriptions.
You
may request a copy of the registration statement, the above filings and any future filings that are incorporated by reference into this prospectus, other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing, at no cost, by writing or calling us at the following address: Office of the Secretary, The Coca-Cola Company, One
Coca-Cola Plaza, Atlanta, Georgia 30313; telephone: (404) 676-2121.
You
should rely only on the information contained or incorporated by reference in this prospectus, any accompanying prospectus supplement or any free writing prospectus filed by us with
the SEC and any information about the terms of securities offered conveyed to you by us, our underwriters or agents. We have not authorized anyone else to provide you with additional or different
information. These
securities are only being offered in jurisdictions where the offer is permitted. You should not assume that the information contained in this prospectus, any accompanying prospectus supplement or any
free writing prospectus is accurate as of any date other than their respective dates.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein may contain statements, estimates or
projections that constitute "forward-looking statements" as defined under U.S. federal securities laws. Generally, the words "believe," "expect," "intend," "estimate," "anticipate," "project," "will"
and similar expressions identify forward-looking statements, which generally are not historical in nature. Forward-looking statements are subject to certain risks and uncertainties that could cause
actual results to differ materially from our historical experience and our present expectations or projections. These risks include, but are not limited to, obesity and other health-related concerns;
water scarcity and poor quality; evolving consumer preferences; increased competition and capabilities in the marketplace; product safety and quality concerns; perceived negative health consequences
of certain ingredients, such as non-nutritive sweeteners and biotechnology-derived substances, and of other substances present in our beverage
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products
or packaging materials; an inability to be successful in our innovation activities; increased demand for food products and decreased agricultural productivity; changes in the retail landscape
or the loss of key retail or foodservice customers; an inability to expand operations in emerging and developing markets; fluctuations in foreign currency exchange rates; interest rate increases; an
inability to maintain good relationships with our bottling partners; a deterioration in our bottling partners' financial condition; increases in income tax rates, changes in income tax laws or
unfavorable resolution of tax matters; increased or new indirect taxes in the United States and throughout the world; increased cost, disruption of supply or shortage of energy or fuels; increased
cost, disruption of supply or shortage of ingredients, other raw materials or packaging materials; changes in laws and regulations relating to beverage containers and packaging; significant additional
labeling or warning requirements or limitations on the marketing or sale of our products; an inability to protect our information systems against service interruption, misappropriation of data or
breaches of security; unfavorable general economic conditions in the United States; unfavorable economic and political conditions in international markets; litigation or legal proceedings; failure to
adequately protect, or disputes relating to, trademarks, formulae and other intellectual property rights; adverse weather conditions; climate change; damage to our brand image and corporate reputation
from negative publicity, even if unwarranted, related to product safety or quality, human and workplace rights, obesity or other issues; changes in, or failure to comply with, the laws and regulations
applicable to our products or our business operations; changes in accounting standards; an inability to achieve our overall long-term growth objectives; deterioration of global credit market
conditions; default by or failure of one or more of our counterparty financial institutions; an inability to renew collective bargaining agreements on satisfactory terms, or we or our bottling
partners experience strikes, work stoppages or labor unrest;
future impairment charges; multi-employer pension plan withdrawal liabilities in the future; an inability to successfully integrate and manage our Company-owned or -controlled bottling operations; an
inability to successfully manage our refranchising activities; failure to realize the economic benefits from or an inability to successfully manage the possible negative consequences of our
productivity initiatives; failure to realize a significant portion of the anticipated benefits of our strategic relationship with Monster; inability to attract or retain a highly skilled workforce;
global or regional catastrophic events, including terrorist acts, cyber-strikes and radiological attacks; and other risks discussed in our filings with the SEC, including our Annual Report on
Form 10-K for the year ended December 31, 2016 and our subsequently filed Quarterly Reports on Form 10-Q, which filings are available from the SEC. You should not place undue
reliance on forward-looking statements, which speak only as of the date they are made. We undertake no obligation to publicly update or revise any forward-looking statements.
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OUR COMPANY
The Coca-Cola Company is the world's largest beverage company. We own or license and market more than 500 nonalcoholic beverage brands including
sparkling beverages and a variety of still beverages such as waters, flavored waters and enhanced waters, juices and juice drinks, ready-to-drink teas and coffees, sports drinks, dairy and energy
drinks. We own and market four of the world's top five nonalcoholic sparkling beverage brands: Coca-Cola, Diet Coke, Fanta and Sprite. Finished beverage products bearing our trademarks, sold in the
United States since 1886, are now sold in more than 200 countries.
We
make our branded beverage products available to consumers throughout the world through our network of Company-owned or -controlled bottling and distribution operations as well as
independent bottling partners, distributors, wholesalers and retailersthe world's largest beverage distribution system. Beverages bearing trademarks owned by or licensed to us account for
more than 1.9 billion of the approximately 59 billion servings of all beverages consumed worldwide every day.
We
believe our success depends on our ability to connect with consumers by providing them with a wide variety of options to meet their desires, needs and lifestyles. Our success further
depends on the ability of our people to execute effectively, every day.
Our
goal is to use our Company's assetsour brands, financial strength, unrivaled distribution system, global reach, and the talent and strong commitment of our management
and associatesto become more competitive and to accelerate growth in a manner that creates value for our shareowners.
We
were incorporated in September 1919 under the laws of the State of Delaware and succeeded to the business of a Georgia corporation with the same name that had been organized in 1892.
Our
principal office is located at One Coca-Cola Plaza, Atlanta, Georgia 30313, and our telephone number at that address is (404) 676-2121. We maintain a website at
www.coca-colacompany.com
where
general information about us is available. We are not incorporating the contents of the website into this prospectus.
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USE OF PROCEEDS
Except as may be otherwise set forth in the applicable prospectus supplement accompanying this prospectus, the net proceeds from the sale of the
securities by us will be used for general corporate purposes, including:
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working capital;
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capital expenditures;
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-
acquisitions of or investments in businesses or assets;
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redemption and repayment of short-term or long-term borrowings; and
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purchases of our common stock.
Pending
application of the net proceeds, we may temporarily invest the net proceeds in short-term marketable securities.
We
will not receive any proceeds from the sale of securities by selling stockholders.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges for the five fiscal years ended December 31, 2016 and for the three months ended March 31,
2017 are set forth below:
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Year Ended December 31,
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Three Months
Ended
March 31,
2017
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2016
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2015
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2014
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2013
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2012
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7.7x
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10.6x
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11.2x
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16.7x
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21.4x
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24.4x
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We
computed ratios of earnings to fixed charges on a total enterprise basis by dividing income from continuing operations before income taxes and changes in accounting principles
(excluding undistributed equity earnings) and fixed charges (excluding capitalized interest) by fixed charges. Fixed charges consist of gross interest incurred and the interest portion of rental
expense.
As
of March 31, 2017, we were contingently liable for guarantees of indebtedness owed by third parties, including certain variable interest entities, in the amount of
$578 million. Fixed charges for these contingent liabilities have not been included in the computation of the above ratios, as the amounts are immaterial and, in the opinion of management, it
is not probable that we will be required to satisfy the guarantees. The interest amount in the above table does not include interest expense associated with unrecognized tax benefits.
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DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the debt securities. The applicable prospectus supplement will describe the specific
terms of the debt securities offered by that prospectus supplement and any general terms outlined in this section that will not apply to those debt securities.
Any
debt securities will be either our senior unsecured obligations issued in one or more series, which we refer to as the "senior debt securities," or our subordinated unsecured
obligations issued in one or more series, which we refer to as the "subordinated debt securities." We will issue the senior debt securities under an amended and restated indenture between us and
Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, as trustee, dated as of April 26, 1988, as amended, which we refer to as the "senior indenture." We will issue the
subordinated debt securities under an indenture to be entered into between us and Deutsche Bank Trust Company Americas, as trustee, which we refer to as the "subordinated indenture." We refer to the
senior indenture and the
subordinated indenture, collectively, as the "indentures." As used in this prospectus, "debt securities" means the debentures, notes, bonds and other evidences of indebtedness that we issue and the
trustee authenticates and delivers under the indentures. The indentures and all debt securities issued under the indentures will be governed by and construed in accordance with the laws of the State
of New York. Additionally, the indentures are subject to the provisions of the Trust Indenture Act of 1939, as amended.
We
have summarized selected terms and provisions of the indentures in this section. We have also incorporated by reference the indentures as exhibits to the registration statement of
which this prospectus forms a part. You should read the indentures for additional information before you buy any debt securities. See "Where You Can Find More Information" for information on
how to obtain copies of the indentures. The summary that follows includes references to section numbers of the indentures (as supplemented by the first supplemental indenture to the senior indenture,
dated as of February 24, 1992, and the second supplemental indenture to the senior indenture, dated as of November 1, 2007, in some instances) so that you can more easily locate these
provisions. Unless otherwise indicated, section references are the same for the senior indenture and the subordinated indenture. Capitalized terms used but not defined in this summary have the
meanings specified in the indentures.
General
The senior debt securities will rank equally and ratably with our other unsecured and unsubordinated obligations. The subordinated debt
securities will be subordinated in right of payment to the prior payment in full of our senior debt, including any senior debt securities, as described below under "Subordinated Indenture
ProvisionsSubordination." The debt securities will rank junior to all of our currently existing and future secured debt.
We
are not limited as to the amount of debt securities that we can issue under the indentures. We may issue debt securities under the indentures in one or more series, each with
different terms, up to the aggregate principal amount which we may authorize from time to time. We also have the right to "reopen" a previous issue of a series of debt securities by issuing additional
debt securities of such series. (Section 3.01).
A
prospectus supplement relating to a series of debt securities being offered will include specific terms relating to that offering. In addition to stating whether the securities will be
senior or subordinated, these terms will include some or all of the following:
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the title and type of the debt securities;
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the total principal amount of debt securities of that series that are authorized and outstanding as of the most recent date;
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any limit on the total principal amount of the debt securities;
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the price at which the debt securities will be issued;
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the date or dates on which the principal of and premium, if any, on the debt securities will be payable;
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the maturity date of the debt securities;
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the minimum denominations in which the debt securities will be issued;
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if the debt securities will bear interest;
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the interest rate on the debt securities or the method of calculating the interest rate;
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the date from which interest will accrue;
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the record and interest payment dates for the debt securities;
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the first interest payment date;
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the place or places at which the principal or premium, if any, and interest, if any, on the debt securities will be paid;
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any optional redemption provisions that would permit us or the holders of the debt securities to elect redemption of the debt securities prior
to their final maturity;
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any sinking fund or mandatory redemption or retirement provisions that would obligate us to redeem the debt securities prior to their final
maturity;
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the currency or currencies in which the debt securities will be denominated and payable, if other than U.S. dollars;
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any provisions that would permit us or the holders of the debt securities to elect the currency or currencies in which the debt securities are
paid;
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the portion of the principal amount of the debt securities that will be payable upon declaration or acceleration of maturity of the debt
securities (if other than the principal amount of the debt securities);
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whether the provisions described under the heading "Defeasance of the Indentures and Securities" below apply to the debt securities;
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whether the provisions of some or all of the covenants described under the heading "Restrictive Covenants" below apply to the debt securities;
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any changes to or additional Events of Default (as defined under the heading "Event of Default" below) or covenants;
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whether the debt securities will be issued in whole or in part in the form of global securities and, if so, the depositary for those global
securities;
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any special tax implications of the debt securities;
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for the subordinated debt securities, whether the specific subordination provisions applicable to the subordinated debt securities are other
than as set forth in the subordinated indenture;
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whether the debt securities are convertible or exchangeable into our common stock or other equity securities and the terms and conditions upon
which such conversion or exchange shall be effected; and
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any other terms of the debt securities.
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If
the purchase price of any debt securities is denominated in a foreign currency or composite currency, or if the principal of or any premium or interest on any debt securities is
payable in a foreign currency or composite currency, we will include the restrictions, elections, tax consequences, specific terms and other information with respect to the debt securities and the
applicable foreign currency or composite currency in the applicable prospectus supplement.
We
may issue debt securities as Original Issue Discount Securities (as defined below) to be offered and sold at a substantial discount from their principal amount and typically bearing
no interest or interest at a rate which at the time of issuance is below market rates. An "Original Issue Discount Security" is any debt security which provides for an amount less than its principal
amount to be due and payable upon a declaration of acceleration of its maturity. (Section 1.01). We will describe the federal income tax, accounting and other considerations relevant to any
such Original Issue Discount Securities in the applicable prospectus supplement.
The
particular terms of a series of debt securities will be set forth in an officers' certificate or supplemental indenture, and described in the applicable prospectus supplement. We
urge you to read the applicable indenture as supplemented by any officers' certificate or supplemental indenture that is applicable to you because that indenture, as supplemented, and not this
section, defines your rights as a holder of the debt securities.
Restrictive Covenants
The indentures contain certain restrictive covenants that apply, or may apply, to us and all of our Restricted Subsidiaries (as defined below).
The covenants described below under "Restrictions on Liens" and "Restrictions on Sale and Leaseback Transactions" will not apply to a series of debt securities unless we specifically so provide in the
applicable prospectus supplement. These covenants do not apply to any of our Subsidiaries that are not designated as Restricted Subsidiaries.
You
should carefully read the applicable prospectus supplement for the particular provisions of the series of debt securities being offered, including any additional restrictive
covenants or Events of Default that may be included in the terms of such debt securities.
Restrictions on Liens.
If the applicable prospectus supplement states that the covenant set forth in Section 5.03 of the
indentures will be
applicable to a series of debt securities, then we will be subject to a covenant providing that we will not, nor will we permit any Restricted Subsidiary (as defined below) to, create, incur, issue,
assume or guarantee any debt for money borrowed (as used in this "Restrictive Covenants" section, "Debt") if such Debt is secured by a mortgage, pledge, lien, security interest or other encumbrance
upon any Principal Property (as defined below) or on any shares of stock or indebtedness of any Restricted Subsidiary (whether such Principal Property, shares of stock or indebtedness are now owned or
acquired in the future), without, in any such case, effectively providing that the debt securities and, at our option, any of our other indebtedness or guarantees or any indebtedness or guarantees of
a Restricted Subsidiary ranking equally with the debt securities, will be secured equally and ratably with (or, at our option, prior to) such Debt. The foregoing restrictions do not apply
to:
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(1)
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mortgages
on property, shares of stock or indebtedness of any corporation existing at the time such corporation becomes a Restricted Subsidiary;
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(2)
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mortgages
on property existing at the time of acquisition of such property and, in some instances, certain purchase money mortgages;
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(3)
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mortgages
securing Debt owing by any Restricted Subsidiary to us or another Restricted Subsidiary;
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(4)
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mortgages
on property of a corporation existing at the time such corporation is merged into or consolidated with us or a Restricted Subsidiary or at the time of a
sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to us or a Restricted Subsidiary;
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(5)
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mortgages
in favor of any country or any political subdivision of any country, or any instrumentality thereof, to secure 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 construction of the property subject to such mortgages; or
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(6)
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any
extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any mortgage referenced in clauses (1)
through (5) above, inclusive, or any mortgage existing at the respective date of the applicable indenture, provided that the principal amount of Debt secured at the time of such extension may
not be increased, and the collateral which secures the same cannot be expanded.
Notwithstanding
these exceptions, we and one or more Restricted Subsidiaries may, without securing the debt securities, create, incur, issue, assume or guarantee secured Debt which would
otherwise be subject to the foregoing restrictions, provided that if, after giving effect to such Debt, the aggregate of such secured Debt then outstanding (not including secured Debt permitted under
the foregoing exceptions) at such time does not exceed 10% of our consolidated shareowners' equity as of the end of the preceding fiscal year. (Section 5.03).
Restrictions on Sale and Leaseback Transactions.
If the applicable prospectus supplement states that the covenant set forth in
Section 5.04 of
the indentures will be applicable to a series of debt securities, then we will be subject to the covenant providing that we will not, and we will not permit any Restricted Subsidiary to, enter into
any lease, other than intercompany leases, longer than three years covering any Principal Property that is sold to any other person in connection with such lease unless:
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(1)
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we
or such Restricted Subsidiary would be entitled, pursuant to "Restrictions on Liens" described above, to incur Debt secured by a mortgage on the Principal
Property involved in an amount at least equal to the Attributable Debt (as defined below) without equally and ratably securing the debt securities provided that such Attributable Debt shall then be
deemed to be Debt subject to the provisions of such restriction on liens;
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(2)
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since
the respective date of the applicable indenture and within a period commencing twelve months prior to the consummation of the sale and leaseback transaction
and ending twelve months after the consummation of such transaction, we or such Restricted Subsidiary has expended, or will expend, for the Principal Property an amount equal to (a) the net
proceeds of such sale and leaseback transaction, and we elect to designate all of such amount as a credit against such transaction or (b) a part of the net proceeds of such sale and leaseback
transaction, and we elect to designate such amount as a credit against such transaction and apply an amount equal to the remainder of the net proceeds as provided in clause (3) below; or
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(3)
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an
amount equal to such Attributable Debt (less any amount elected under clause (2) above) is applied within 90 days of such lease to the retirement of
Debt, other than intercompany Debt, which by its terms matures at, or is prepayable or extendible or renewable at the sole option of the obligor without requiring the consent of the obligee to, a date
more than twelve months after the date of the creation of such Debt. (Section 5.04).
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Consolidation, Merger and Sale
The indentures generally provide that we may consolidate with or merge into any other corporation, or transfer or lease our properties and
assets as an entirety or substantially as an entirety to any other corporation, if the corporation formed by or resulting from any such consolidation, into which we are merged or which shall have
acquired or leased such properties and assets, shall, pursuant to a supplemental indenture, assume payment of the principal of (and premium, if any) and interest, if any, on the debt securities and
the performance and observance of the covenants of the indentures. (Section 11.01).
If
upon (1) any consolidation or merger of us, or of us and any Subsidiary, with or into any other corporation or corporations, or upon the merger of another corporation into us,
or (2) successive consolidations or mergers to which we or our successors shall be a party or parties, or (3) upon any sale or conveyance of our property, or the property of us and any
Subsidiary, as an entirety or substantially as an entirety, any Principal Property or any shares of stock or Debt of any Restricted Subsidiary would then become subject to any mortgage, we will cause
the debt securities, and at our option any other indebtedness of or guarantees by us or such Restricted Subsidiary ranking equally with the debt securities, to be secured equally and ratably with (or,
at our option, prior to) any Debt secured thereby, unless such Debt could have been incurred without us being required to secure the debt securities equally or ratably with (or prior to) such Debt
pursuant to "Restrictions on Liens" described above. (Section 11.01).
Certain Definitions
As used in the indentures and this prospectus, the following definitions apply:
"Attributable
Debt" means, in respect of a sale and leaseback transaction, as of any particular time, the present value (discounted at the rate of interest implicit in the terms of the
lease involved in such sale and leaseback transaction, as determined in good faith by us) of the obligation of the lessee thereunder for rental payments (excluding, however, any amounts required to be
paid by such lessee, whether or not designated as rent or additional rent, on account of maintenance and repairs, insurance, taxes, assessments, water rates or similar charges or any amounts required
to be paid by such lessee thereunder contingent upon the amount of sales, maintenance and repairs, insurance, taxes, assessments, water rates or similar charges) during the remaining term of such
lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended). (Section 1.01).
"Principal
Property" means our manufacturing plants or facilities or those of a Restricted Subsidiary located within the United States of America (other than its territories and
possessions) or Puerto Rico, except any such manufacturing plant or facility which our board of directors by resolution reasonably determines not to be of material importance to the total business
conducted by us and our Restricted Subsidiaries. (Section 1.01).
"Restricted
Subsidiary" means any Subsidiary (1) substantially all of the property of which is located, or substantially all of the business of which is carried on, within the
United States of America (other than its territories and possessions) or Puerto Rico and (2) which owns or is the lessee of any Principal Property, but does not include any Subsidiary primarily
engaged in financing activities, primarily engaged in the leasing of real property to persons other than us and our Subsidiaries, or which is characterized by us as a temporary investment. The terms
"Restricted Subsidiary" does not include Coca-Cola Financial Corporation, The Coca-Cola Trading Company LLC, 55th & 5th Avenue
Corporation, Bottling Investments Corporation or ACCBC Holding Company, and their respective Subsidiaries. (Section 1.01).
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"Subsidiary"
means a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by us or one or more other Subsidiaries, or by us and one or
more other Subsidiaries. (Section 1.01).
"Voting
Stock" means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees
of said corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
(Section 1.01).
Event of Default
"Event of Default," when used in the indentures with respect to any series of debt securities, means any of the following
events:
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-
default for 30 days in payment of any interest on such series;
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-
default in payment of any principal of or premium, if any, on such series;
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default in payment of any sinking fund installment for such series;
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default for 90 days after written notice in performance of any other covenant in the indentures (other than a covenant or agreement
included in the indentures solely for the benefit of holders of debt securities of any series other than that series);
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certain events of bankruptcy, insolvency or reorganization; or
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any other Event of Default provided with respect to that series. (Section 7.01).
The
indentures require us to deliver annually to the trustee an officers' certificate, in which certain of our officers certify whether or not they have knowledge of any default in our
performance of the covenants described. (Section 5.07).
If
an Event of Default shall occur and be continuing with respect to the debt securities of any series, the trustee or the holders of not less than 25% in aggregate principal amount of
the debt securities of such series then outstanding may declare the principal (or, if the debt securities of such series are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the applicable prospectus supplement for such series) of all the debt securities of such series and the interest accrued thereon to be due and payable. (Section 7.02). The
holders of not less than a majority in aggregate principal amount of the outstanding debt securities of such series (or, in the case of certain Events of Default pertaining to all outstanding debt
securities, with the consent of holders of a majority in aggregate principal amount of all the debt securities then outstanding acting as one class) may waive any Event of Default with respect to a
particular series of debt securities, except an Event of Default in the payment of principal of or any premium or interest on any debt securities of such series or in respect of a covenant or
provision of the indentures which, under the terms thereof, cannot be modified or amended without the consent of the holders of each outstanding debt security of such series. (Section 7.11).
See "Modifications of the Indentures" below.
Subject
to the provisions of the indentures relating to the duties of the trustee in case an Event of Default shall occur and be continuing, the trustee is under no obligation to
exercise any of the rights or powers under the indentures at the request, order or direction of any of the holders of debt securities
of any series, unless such securityholders shall have offered to the trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by such exercise.
(Section 8.02). Subject to such provisions for the indemnification of the trustee and certain limitations contained in the indentures, the holders of a majority in aggregate principal amount of
all debt securities of such series at the time outstanding shall have the right to direct the time, method and
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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.
(Section 7.10).
If
any debt securities are denominated in a foreign currency or composite currency, then for the purposes of determining whether the holders of the requisite principal amount of debt
securities have taken any action as herein described, the principal amount of such debt securities shall be deemed to be that amount of United States dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange into United States dollars for the currency or composite currency in which such debt securities are denominated (as determined by us or an authorized
exchange rate agent and evidenced to the trustee) as of the date the taking of such action by the holders of such requisite principal amount is evidenced to the trustee as provided in the indentures.
(Section 14.10).
Modifications of the Indentures
We and the trustee may modify and amend the indentures with the consent of the holders of not less than a majority in aggregate principal amount
then outstanding of any series of the debt securities affected by such modification or amendment. However, we may not, without the consent of the holders of each debt security so
affected:
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extend the fixed maturity of such series of debt securities;
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reduce the principal amount of such series of debt securities;
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reduce the rate or extend the time of payment of interest on such series of debt securities;
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impair or affect the right of any securityholder to institute suit for payment of principal or interest or change the coin or currency in which
the principal of or interest on such series of debt securities is payable; or
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reduce the percentage of aggregate principal amount of debt securities of such series from whom consent is required to modify the indentures.
(Section 10.02).
In
addition, under our subordinated indenture, without the consent of each holder of each debt security so affected, we may not modify the provisions of the subordinated indenture with
respect to subordination of the debt securities in a manner adverse to the holders.
We
and the trustee may modify and amend the indentures without the consent of any holders of debt securities to:
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provide for security for the debt securities;
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evidence the assumption of our obligations under the applicable indenture by a successor;
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add covenants that would benefit holders of any debt securities;
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cure any ambiguity, omission, defect or inconsistency;
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change or eliminate any of the provisions of the indentures so long as such change or elimination becomes effective only when there are no
securities created prior to the execution of the supplemental indenture then outstanding which are entitled to the benefit of such provision;
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provide for a successor trustee; or
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make such provisions as may be necessary or advisable in order to comply with the withholding provisions of the Internal Revenue Code of 1986,
as amended, and the rules and regulations thereunder. (Section 10.01).
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Defeasance of the Indentures and Securities
Unless the applicable prospectus supplement states otherwise, the indentures provide that we will be deemed to have paid and discharged the
entire indebtedness on the debt securities of any series, and our obligations under the indentures with respect to the debt securities of such series (other than certain specified obligations, such as
the obligations to maintain a security register pertaining to transfer of the debt securities, to maintain a paying agency office, and to replace stolen, lost or destroyed debt securities) will cease
to be in effect, from and after the date that we deposit with the trustee, in trust:
-
-
money in the currency or composite currency in which the debt securities of such series are denominated; or
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-
U.S. Government Obligations, in the case of debt securities denominated in dollars, or obligations issued or guaranteed by the government which
issued the currency in which the debt securities of such series are denominated, in the case of debt securities denominated in foreign currencies, which through the payment of interest and principal
in accordance with their terms will provide money in the currency in which the debt securities of such series are denominated; or
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-
a combination thereof,
which
is sufficient to pay and discharge the principal and premium, if any, and interest, if any, to the date of maturity on or the redemption date of, such series of debt securities.
(Sections 12.01 and 12.02). In the event of any such defeasance, holders of such debt securities would be able to look only to such trust fund for payment of principal (and premium, if any) and
interest, if any, on their debt securities until maturity.
Such
defeasance may be treated as a taxable exchange of the related debt securities for an issue of obligations of the trust or a direct interest in the money, U.S. Government
Obligations or other obligations held in the trust. In that case, holders of such debt securities may recognize gain or loss as if the trust obligations or the money, U.S. Government Obligations or
other obligations deposited, as the case may be, had actually been received by them in exchange for their debt securities. Such holders thereafter might be required to include in income a different
amount than would be includable in the absence of defeasance. We encourage prospective investors to consult with their own tax advisors as to the specific consequences of defeasance.
Denominations
Unless the applicable prospectus supplement states otherwise, the debt securities will be issued only in registered form without coupons, in
U.S. dollars in denominations of $1,000 or any integral multiples of $1,000. We will issue a book-entry security equal to the aggregate principal amount of outstanding debt securities of the series
represented by such book-entry security. We will specify the denominations of a series of debt securities denominated in a foreign currency or composite currency in the applicable prospectus
supplement. (Sections 3.02 and 3.03).
Registration and Transfer
You may exchange any certificated securities of any series for other certificated securities of the same series and of a like aggregate
principal amount and tenor of different authorized denominations. Upon payment of any taxes and other governmental charges as described in the indentures, you may present certificated securities for
registration of transfer (with the form of transfer duly executed), without a service charge, at the office of the securities registrar or at the office of any transfer agent that we designate for
such purpose and reference in the applicable prospectus supplement with respect to any series of debt securities. Subject to its satisfaction with the documents of title and identity of the
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person
making the request, the securities registrar or such transfer agent, as the case may be, will effect such transfer or exchange.
We
have initially appointed the trustee as securities registrar under the indentures. (Section 3.05). If the prospectus supplement refers to any transfer agent in addition to the
securities registrar initially designated by us with respect to any series of debt securities, we may at any time rescind the designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that we will be required to maintain a transfer agent in the borough of Manhattan, the city of New York, for such series. We may at any time
designate additional transfer agents with respect to any series of debt securities. (Section 5.02).
In
the event of any partial redemption in part of a series of debt securities, we will not be required to (1) issue securities of such series, register the transfer of securities
of such series or exchange debt securities of such series during a period beginning at the opening of business 15 days before the mailing date of a notice of redemption of such debt securities
of that series selected to be redeemed and ending at the close of business on such mailing date or (2) register the transfer or exchange of any debt security, or portion of any such debt
security, that is called for redemption, except the unredeemed portion of any debt security being redeemed in part. (Section 3.05).
Payment and Paying Agents
Unless the applicable prospectus supplement states otherwise, we will pay the principal of and any premium and interest on debt securities at
the office of the paying agent or paying agents as we may designate from time to time. However, at our option we may pay any interest by check mailed or delivered to the address of the person entitled
to such payment as it appears in the securities register. (Section 2.02). Unless the applicable prospectus supplement states otherwise, we will pay any installment of interest on debt
securities to the person in whose name the debt security is registered at the close of business on the regular record date for such interest payment. (Section 3.07). Payments of any interest on
the debt securities may be subject to the deduction of applicable withholding taxes. (Section 5.01).
Unless
the applicable prospectus supplement states otherwise, the principal office of the trustee in the city of New York is designated as our paying agent for payments with respect to
debt securities. Any other paying agents that we may designate at the time of the offering and issuance of a series of debt securities will be named in the related prospectus supplement. With regard
to any series, we may at any time designate additional paying agents, rescind the designation of any paying agents or approve a change in the office through which any paying agent acts, except that we
will be required to maintain a paying agent in the borough of Manhattan in the city of New York. (Section 5.02).
The
trustee or any paying agent for the payment of principal of or interest on any debt security will repay to us all moneys paid by us which remain unclaimed at the end of two years
after such principal or interest shall have become due and payable, and, after such repayment occurs, the holder of the applicable debt security will be entitled to look only to us for payment.
(Section 12.04).
Concerning the Trustee
Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, New York, New York, is the trustee under the senior indenture and
has agreed to act as trustee under the subordinated indenture. We maintain banking relationships in the ordinary course of business with affiliates of Deutsche Bank Trust Company Americas, and
affiliates of Deutsche Bank Trust Company Americas have entered into foreign currency transactions with us, serve as fiscal agents for certain of our outstanding obligations and have provided back-up
lines of credit for our commercial paper.
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Book-Entry Delivery and Settlement
We will issue any debt securities in the form of one or more global notes in definitive, fully registered, book-entry form. The global notes
will be deposited with or on behalf of the Depository Trust Company ("DTC") and registered in the name of Cede & Co., as nominee of DTC.
DTC, Clearstream and Euroclear
Beneficial interests in the global notes will be represented through book-entry accounts of financial institutions acting on behalf of
beneficial owners as direct and indirect participants in DTC. Investors may hold interests in the global notes through either DTC (in the United States), Clearstream Banking, societe anonyme,
Luxembourg, which we refer to as Clearstream, or Euroclear Bank S.A./ N.V., as operator of the Euroclear System, which we refer to as Euroclear, in Europe, either directly if they are
participants in such systems or indirectly through organizations that are participants in such systems. Clearstream and Euroclear will hold interests on behalf of their participants through customers'
securities accounts in Clearstream's and Euroclear's names on the books of their U.S. depositaries, which in turn will hold such interests in customers' securities accounts in the U.S. depositaries'
names on the books of DTC.
DTC
has advised us that:
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DTC is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered under Section 17A of
the Exchange Act.
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DTC holds securities that its participants deposit with DTC and facilitates the settlement among participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants' accounts, thereby eliminating the need for physical movement of securities
certificates.
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Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations and other
organizations, some of whom, and/or their representatives, own DTC.
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DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation ("DTCC"). DTCC is the holding company for DTC, National
Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries.
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Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks and trust companies
that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly.
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The rules applicable to DTC and its direct and indirect participants are on file with the SEC.
Clearstream
has advised us that it is incorporated under the laws of Luxembourg as a professional depositary. Clearstream holds securities for its customers and facilitates the clearance
and settlement of securities transactions between its customers through electronic book-entry changes in accounts of its customers, thereby eliminating the need for physical movement of certificates.
Clearstream provides to its customers, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities and securities lending and borrowing.
Clearstream interfaces with domestic markets in several countries. As a professional depositary, Clearstream is subject to regulation by the Luxembourg Commission for the Supervision of the Financial
Sector. Clearstream customers are recognized financial institutions around the world, including underwriters, securities brokers and
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dealers,
banks, trust companies, clearing corporations and other organizations and may include the underwriters. Indirect access to Clearstream is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial relationship with a Clearstream customer either directly or indirectly.
Euroclear
has advised us that it was created in 1968 to hold securities for participants of Euroclear and to clear and settle transactions between Euroclear participants through
simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates and any risk from lack of simultaneous transfers of securities and cash.
Euroclear provides various other services, including securities lending and borrowing and interfaces with domestic markets in several countries. Euroclear is operated by Euroclear
Bank S.A./ N.V., which we refer to as the Euroclear Operator. All operations are conducted by the Euroclear Operator, and all Euroclear securities clearance accounts and Euroclear cash
accounts are accounts with the Euroclear Operator. Euroclear participants include banks (including central banks), securities brokers and dealers, and other professional financial intermediaries and
may include the underwriters. Indirect access to Euroclear is also available to other firms that clear through or maintain a custodial relationship with a Euroclear participant, either directly or
indirectly.
We
understand that the Euroclear Operator is licensed by the Belgian Banking and Finance Commission to carry out banking activities on a global basis. As a Belgian bank, it is regulated
and examined by the Belgian Banking and Finance Commission.
We
have provided the descriptions of the operations and procedures of DTC, Clearstream and Euroclear in this prospectus supplement solely as a matter of convenience. These operations and
procedures are solely within the control of those organizations and are subject to change by them from time to time. None of us, the underwriters nor the trustee takes any responsibility for these
operations or procedures, and you are urged to contact DTC, Clearstream and Euroclear or their participants directly to discuss these matters.
We
expect that under procedures established by DTC:
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upon deposit of the global notes with DTC or its custodian, DTC will credit on its internal system the accounts of direct participants
designated by the underwriters with portions of the principal amounts of the global notes; and
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ownership of the debt securities will be shown on, and the transfer of ownership thereof will be effected only through, records maintained by
DTC or its nominee, with respect to interests of direct participants, and the records of direct and indirect participants, with respect to interests of persons other than participants.
The
laws of some jurisdictions may require that purchasers of securities take physical delivery of those securities in definitive form. Accordingly, the ability to transfer interests in
the debt securities represented by a global note to those persons may be limited. In addition, because DTC can act only on behalf of its participants, who in turn act on behalf of persons who hold
interests through participants, the ability of a person having an interest in debt securities represented by a global note to pledge or transfer those interests to persons or entities that do not
participate in DTC's system, or otherwise to take actions in respect of such interest, may be affected by the lack of a physical definitive security in respect of such interest.
So
long as DTC or its nominee is the registered owner of a global note, DTC or that nominee will be considered the sole owner or holder of the debt securities represented by that global
note for all purposes under the indenture and under the debt securities. Except as provided below, owners of beneficial interests in a global note will not be entitled to have debt securities
represented by that global note registered in their names, will not receive or be entitled to receive physical delivery of certificated notes and will not be considered the owners or holders thereof
under the applicable
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indenture
or under the debt securities for any purpose, including with respect to the giving of any direction, instruction or approval to the trustee. Accordingly, each holder owning a beneficial
interest in a global note must rely on the procedures of DTC and, if that holder is not a direct or indirect participant, on the procedures of the participant through which that holder owns its
interest, to exercise any rights of a holder of debt securities under the applicable indenture or a global note.
Neither
we nor the trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of debt securities by DTC, Clearstream or
Euroclear, or for maintaining, supervising or reviewing any records of those organizations relating to the debt securities.
Payments
on the debt securities represented by the global notes will be made to DTC or its nominee, as the case may be, as the registered owner thereof. We expect that DTC or its
nominee, upon receipt of any payment on the debt securities represented by a global note, will credit participants' accounts with payments in amounts proportionate to their respective beneficial
interests in the global note as shown in the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests in the global note held through such
participants will be governed by standing instructions and customary practice as is now the case with securities held for the accounts of customers registered in the names of nominees for such
customers. The participants will be responsible for those payments.
Distributions
on the debt securities held beneficially through Clearstream will be credited to cash accounts of its customers in accordance with its rules and procedures, to the extent
received by the U.S. depositary for Clearstream.
Securities
clearance accounts and cash accounts with the Euroclear Operator are governed by the Terms and Conditions Governing Use of Euroclear and the related Operating Procedures of
the Euroclear System, and applicable Belgian law (collectively, the "Terms and Conditions"). The Terms and Conditions govern transfers of securities and cash within Euroclear, withdrawals of
securities and cash from Euroclear, and receipts of payments with respect to securities in Euroclear. All securities in Euroclear are held on a fungible basis without attribution of specific
certificates to specific securities clearance accounts. The Euroclear Operator acts under the Terms and Conditions only on behalf of Euroclear participants and has no record of or relationship with
persons holding through Euroclear participants.
Distributions
on the debt securities held beneficially through Euroclear will be credited to the cash accounts of its participants in accordance with the Terms and Conditions, to the
extent received by the U.S. depositary for Euroclear.
Initial settlement for the debt securities 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. Secondary market
trading between Clearstream customers and/or Euroclear participants will occur in the ordinary way in accordance with the applicable rules and operating procedures of Clearstream and Euroclear, as
applicable, and will be settled using the procedures applicable to conventional eurobonds in immediately available funds.
Cross-market
transfers between persons holding directly or indirectly through DTC, on the one hand, and directly or indirectly through Clearstream customers or Euroclear participants, on
the other, will be effected through DTC in accordance with DTC rules on behalf of the relevant European international clearing system by its U.S. depositary; however, such cross-market transactions
will require delivery of instructions to the relevant European international clearing system by the counterparty in such system in accordance with its rules and procedures and within its established
deadlines (European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to the U.S. depositary to take action to
effect final settlement on its
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behalf
by delivering or receiving the debt securities in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Clearstream
customers and Euroclear participants may not deliver instructions directly to their U.S. depositaries.
Because
of time-zone differences, credits of the debt securities received in Clearstream or Euroclear as a result of a transaction with a DTC participant will be made during subsequent
securities settlement processing and dated the business day following the DTC settlement date. Such credits or any transactions in the debt securities settled during such processing will be reported
to the relevant Clearstream customers or Euroclear participants on such business day. Cash received in Clearstream or Euroclear as a result of sales of the debt securities by or through a Clearstream
customer or a Euroclear participant to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Clearstream or Euroclear cash account only as of
the business day following settlement in DTC.
Although
DTC, Clearstream and Euroclear have agreed to the foregoing procedures to facilitate transfers of the debt securities among participants of DTC, Clearstream and Euroclear, they
are under no obligation to perform or continue to perform such procedures and such procedures may be changed or discontinued at any time.
Individual certificates in respect of any debt securities will not be issued in exchange for the global notes, except in very limited
circumstances. We will issue or cause to be issued certificated notes to each person that DTC identifies as the beneficial owner of the debt securities represented by a global note upon surrender by
DTC of the global note if:
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DTC notifies us that it is no longer willing or able to act as a depositary for such global note or ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, and we have not appointed a successor depositary within 90 days of that notice or becoming aware that DTC is no longer so registered;
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an event of default has occurred and is continuing, and DTC requests the issuance of certificated notes; or
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we determine not to have the debt securities of such series represented by a global note.
Neither
we nor the trustee will be liable for any delay by DTC, its nominee or any direct or indirect participant in identifying the beneficial owners of the debt securities. We and the
trustee may conclusively rely on, and will be protected in relying on, instructions from DTC or its nominee for all purposes, including with respect to the registration and delivery, and the
respective principal amounts, of the certificated notes to be issued.
Subordinated Indenture Provisions
The subordinated debt securities will be issued under the subordinated indenture. The subordinated debt securities will rank on an equal basis
with certain of our other subordinated debt that may be outstanding from time to time and will rank junior to all of our senior debt, as defined below, including any senior debt securities that may be
outstanding from time to time.
Subordination.
If we issue subordinated debt securities, the aggregate principal amount of senior debt outstanding as of a recent date
will be set
forth in the applicable prospectus supplement. Neither the senior nor the subordinated indenture restricts the amount of senior debt that we may incur.
Holders
of subordinated debt securities should recognize that contractual provisions in the subordinated indenture may prohibit us from making payments on those securities. Subordinated
debt securities are subordinate and junior in right of payment, to the extent and in the manner stated in the
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subordinated
indenture or any supplement thereto to all of our senior debt, including all debt securities we have issued and will issue under the senior indenture.
As
used in the subordinated indenture and this prospectus, the term "senior debt" means the principal, premium, if any, unpaid interest and all fees and other amounts payable in
connection with any debt for money borrowed other than (1) debt incurred (a) with respect to certain elections under the federal bankruptcy code, (b) debt to our subsidiaries,
(c) debt to our employees, (d) tax liability, and (e) certain trade payables, (2) all obligations under interest rate, currency and commodity swaps, caps, floors, collars,
hedge arrangements, forward contracts or similar agreements and (3) renewals, modifications and refunds of any such debt.
Unless
otherwise indicated in the applicable prospectus supplement, we may not pay principal of, premium, if any, or interest on any subordinated debt securities or defease, purchase,
redeem or otherwise retire such securities if:
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a default in the payment of any principal, or premium, if any, or interest on any senior debt, occurs and is continuing or any other amount
owing in respect of any senior debt is not paid when due; or
-
-
any other default occurs with respect to any senior debt and the maturity of such senior debt is accelerated in accordance with its terms,
unless
and until such default in payment or event of default has been cured or waived and any such acceleration is rescinded or such senior debt has been paid in full in cash.
If
there is any payment or distribution of our assets to creditors upon a total or partial liquidation or a total or partial dissolution or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding, holders of all present and future senior debt (which will include interest accruing after, or which would accrue but for, the commencement of any bankruptcy,
reorganization, insolvency, receivership or similar proceeding) are entitled to receive payment in full before any payment or distribution, whether in cash, securities or other property, in respect of
the subordinated indebtedness. In addition, unless otherwise indicated in the applicable prospectus supplement, in any such event, payments or distributions which would otherwise be made on
subordinated debt securities will generally be paid to the holders of senior debt, or their representatives, in accordance with the priorities existing among these creditors at that time until the
senior debt is paid in full.
After
payment in full of all present and future senior debt, holders of subordinated debt securities will be subrogated to the rights of any holders of senior debt to receive any further
payments or distributions that are applicable to the senior debt until all the subordinated debt securities are paid in full. The subordinated indenture provides that the foregoing subordination
provisions may not be changed in a manner which would be adverse to the holders of senior debt without the consent of the holders of such senior debt.
The
prospectus supplement delivered in connection with the offering of a series of subordinated debt securities will set forth a more detailed description of the subordination provisions
applicable to any such debt securities.
If
the trustee under the subordinated indenture or any holders of the subordinated debt securities receive any payment or distribution that is prohibited under the subordination
provisions, then the trustee or the holders will have to repay that money to the holders of the senior debt.
Even
if the subordination provisions prevent us from making any payment when due on the subordinated debt securities of any series, we will be in default on our obligations under that
series if we do not make the payment when due. This means that the trustee under the subordinated indenture and the holders of that series can take action against us, but they will not receive any
money until the claims of the holders of senior debt have been fully satisfied.
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DESCRIPTION OF CAPITAL STOCK
Set forth below is a summary description of the material terms of our capital stock. For more information, please see our restated certificate
of incorporation, as amended.
Description of Common Stock
We may issue shares of our common stock, either separately or together with other securities offered pursuant to this prospectus. Under our
restated certificate of incorporation, as amended, we are authorized to issue up to 11,200,000,000 shares of our common stock, par value $0.25
per share, of which 4,272,559,271 shares were issued and outstanding as of April 24, 2017. You should read the applicable prospectus supplement relating to an offering of shares of our common
stock, or of securities convertible, exchangeable or exercisable for shares of our common stock, for the terms of such offering, including the number of shares of common stock offered, the initial
offering price and market prices and dividend information relating to our common stock.
The
holders of our common stock are entitled to one vote for each share on all matters submitted to a vote of shareowners. Each share of our common stock outstanding is entitled to
participate equally in any distribution of net assets made to the shareowners in the liquidation, dissolution or winding up of our Company and is entitled to participate equally in dividends as and
when declared by our board of directors. There are no redemption, sinking fund, conversion or preemptive rights with respect to the shares of our common stock. All shares of our common stock have
equal rights and preferences. The rights, preferences and privileges of the holders of our common stock are subject to and may be adversely affected by the rights of holders of shares of any series of
our preferred stock that we may designate and issue in the future.
Description of Preferred Stock
Our restated certificate of incorporation, as amended, authorizes our board of directors to issue, from time to time, up to 100,000,000 shares
of preferred stock, par value $1.00 per share, in one or more series, subject to certain limitations prescribed by law. There are no preferred shares issued and outstanding as of the date of this
prospectus. Our board of directors is authorized to establish from time to time the number of shares to be included in any series of preferred stock, and to fix the designation, powers, preferences,
and rights of the shares of such series and any qualifications, limitations or restrictions thereof.
The
specific terms of any preferred stock to be sold under this prospectus will be described in the applicable prospectus supplement. If so indicated in such prospectus supplement, the
terms of the preferred stock offered may differ from the general terms set forth below. Unless otherwise specified in the prospectus supplement relating to the preferred stock offered thereby, each
series of preferred stock offered will rank equal in right of payment to all other series of our preferred stock, and holders thereof will have no preemptive rights. The preferred stock offered will,
when issued, be fully paid and nonassessable.
You
should read the applicable prospectus supplement for the terms of the preferred stock offered. The terms of the preferred stock set forth in such prospectus supplement may include
the following, as applicable to the preferred stock offered thereby:
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the title and stated value of the preferred stock;
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the number of shares of the preferred stock offered;
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the liquidation preference and the offering price of the preferred stock;
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the dividend rates of the preferred stock and/or methods of calculation of such dividends;
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periods and/or payment dates for the preferred stock dividends;
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whether dividends on the preferred stock are cumulative;
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-
the liquidation rights of the preferred stock;
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-
the procedures for any auction and remarketing, if any, of the preferred stock;
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the sinking fund provisions, if applicable, for the preferred stock;
-
-
the redemption provisions, if applicable, for the preferred stock;
-
-
whether the preferred stock will be convertible into or exchangeable for other securities and, if so, the terms and conditions of conversion or
exchange, including the conversion price or exchange ratio and the conversion or exchange period or the method of determining the same;
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whether the preferred stock will have voting rights and, if so, the terms of such voting rights;
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whether the preferred stock will be listed on any securities exchange;
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whether the preferred stock will be issued with any other securities and, if so, the amount and terms of such other securities; and
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any other specific terms, preferences or rights of, or limitations or restrictions on, the preferred stock.
Our
authorized shares of common stock and preferred stock are available for issuance without further action by our shareowners, unless such action is required by applicable law or the
rules of the stock exchange or automated quotation system on which our securities may be listed or trade. If the approval of our shareowners is not required for the issuance of shares of our common
stock or preferred stock, our board of directors may determine to issue shares without seeking shareowners' approval.
Our
board of directors could issue a series of preferred stock that could, depending on the terms of such series, delay, defer or prevent a change in control of our Company. Our board of
directors would make any determination to issue such shares based on its judgment as to the best interests of our Company and our shareowners. Our board of directors, in so acting, could issue
preferred stock having terms that could discourage an attempt to acquire our Company, including tender offers or other transactions that some, or a majority, of our shareowners might believe to be in
their best interests, or in which our shareowners might receive a premium for their stock over the then current market price of such stock.
Certain Anti-takeover Matters
Our restated certificate of incorporation, as amended, and by-laws contain provisions that may make it more difficult for a potential acquirer
to acquire us by means of a transaction that is not negotiated with our board of directors. These provisions and General Corporation Law of the State of Delaware, or the "DGCL," could delay or prevent
entirely a merger or acquisition that our shareowners consider favorable. These provisions may also discourage acquisition proposals or have the effect of delaying or preventing entirely a change in
control, which could harm our stock price. Our board of directors is not aware of any current effort to accumulate shares of our common stock or to otherwise obtain control of our Company and does not
currently contemplate adopting or recommending the approval of any other action that might have the effect of delaying, deterring or preventing a change in control of our Company.
Following
is a description of the anti-takeover effects of certain provisions of our restated certificate of incorporation, as amended, and of our by-laws.
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No cumulative voting.
The DGCL provides that stockholders of a Delaware corporation are not entitled to the right to cumulate votes in
the election
of directors unless its certificate of incorporation, as amended, provides otherwise. Our restated certificate of incorporation, as amended, does not provide for cumulative voting.
Calling of special meetings of shareowners.
Our by-laws provide that special meetings of our shareowners may be called only by or at
the direction of
our board of directors, the chairman of our board of directors, our chief executive officer or by our secretary if appropriately requested by a person (or group of persons) beneficially owning at
least a twenty-five percent (25%) "net long position" of the Company's outstanding shares of common stock.
Advance notice requirements for shareowner proposals and director nominations.
Our by-laws provide that shareowners seeking to nominate
candidates
for election as directors or to bring business before an annual meeting of shareowners or a shareowner requested special meeting of shareowners must provide timely notice of their proposal in writing
to our corporate secretary.
Generally,
to be timely, a shareowner's notice regarding an annual meeting of shareowners must be received at our principal executive offices not less than 120 days prior to the
first anniversary of the previous year's annual meeting. Our by-laws also specify requirements as to the form and content of a shareowner's notice. These provisions may impede shareowners' ability to
bring matters before an annual meeting of shareowners, a shareowner requested special meeting of shareowners or make nominations for directors.
Limitations on liability and indemnification of officers and directors.
The DGCL authorizes corporations to limit or eliminate the
personal liability
of directors to corporations and their stockholders for monetary damages for breaches of directors' fiduciary duties. Our restated certificate of incorporation, as amended, includes a provision that
eliminates the personal liability of directors for monetary damages for any breach of fiduciary duty in such capacity, except for liability:
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for any breach of the director's duty of loyalty to us or our shareowners;
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for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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under Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or
redemptions); or
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for any transaction from which the director derived any improper personal benefit.
Our
restated certificate of incorporation, as amended, further provides, that if the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability
of directors, then the liability of the directors will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
We
are also expressly authorized to carry directors' and officers' insurance for the benefit of our directors, officers, employees and agents. We believe that these indemnification
provisions and insurance are useful to attract and retain qualified directors and executive officers.
The
limitation of liability and indemnification provisions in the restated certificate of incorporation, as amended, and the by-laws may discourage our shareowners from bringing a
lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though
such an action, if successful, might otherwise benefit us and our shareowners. In addition, the shareowner's investment may be adversely affected to the extent we pay the costs of settlement and
damage awards against directors and officers pursuant to these indemnification provisions.
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Board authority to amend by-laws.
Under the by-laws, our board of directors has the authority to adopt, amend or repeal the by-laws
without the
approval of our shareowners. However, the holders of common stock will also have the right to initiate on their own, with the affirmative vote of a majority of the shares outstanding and without the
approval of our board of directors, proposals to adopt, amend or repeal the by-laws.
General Corporation Law of the State of Delaware.
We are a Delaware corporation that is subject to Section 203 of the DGCL.
Section 203
provides that, subject to certain exceptions specified in the law, a Delaware corporation shall not engage in certain "business combinations" with any "interested stockholder" for a three-year period
following the time that the stockholder became an interested stockholder unless:
-
-
prior to such time, the board of directors approved either the business combination or the transaction that resulted in the stockholder
becoming an interested stockholder;
-
-
upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at
least 85% of the corporation's voting stock outstanding at the time the transaction commenced, excluding certain shares; or
-
-
at or subsequent to that time, the business combination is approved by the board of directors of the corporation and by the affirmative vote of
holders of at least 66
2
/
3
% of the outstanding voting stock that is not owned by the interested stockholder.
Generally,
a "business combination" includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. Subject to certain
exceptions, an "interested stockholder" is a person who, together with that person's affiliates and associates, owns, or within the previous three years did own, 15% or more of our voting stock.
Under
certain circumstances, Section 203 makes it more difficult for a person who would be an "interested stockholder" to effect various business combinations with a corporation
for a three year period. The provisions of Section 203 may encourage any entity interested in acquiring our company to negotiate in advance with our board of directors because the stockholder
approval requirement would be avoided if our board of directors approves either the business combination or the transaction that results in such entity becoming an interested stockholder. These
provisions also may make it more difficult to accomplish transactions involving our Company that our shareowners may otherwise deem to be in their best interests.
Listing
Our common stock is listed and traded on the New York Stock Exchange under the symbol "KO."
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A. Its address is P.O. Box 43070,
Providence, RI 02940-3070 and its telephone number is (888) 265-3747.
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DESCRIPTION OF WARRANTS
This section describes the general terms and provisions of the warrants. The applicable prospectus supplement will describe the specific terms
of the warrants offered by that prospectus supplement and any general terms outlined in this section that will not apply to those warrants.
We
may issue warrants to purchase debt or equity securities. Each warrant will entitle the holder of warrants to purchase for cash the amount of debt or equity securities at the exercise
price stated or determinable in the prospectus supplement for the warrants. We may issue warrants independently or together with any offered securities. The warrants may be attached to or separate
from those offered securities. We will issue the warrants under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all as described in the applicable
prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or
beneficial owners of warrants.
The
prospectus supplement relating to any warrants that we may offer will contain the specific terms of the warrants. These terms may include the
following:
-
-
the title of the warrants;
-
-
the price or prices at which the warrants will be issued and the currency or composite currency you may use to purchase the warrants;
-
-
the designation, amount and terms of the securities for which the warrants are exercisable;
-
-
the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each
other security;
-
-
if applicable, the principal amount of debt securities you may purchase upon exercise of each debt warrant and the price and currency or
composite currency or other consideration (which may include debt securities) you may use to purchase such principal amount of debt securities upon such exercise;
-
-
the aggregate number of warrants;
-
-
any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the
warrants;
-
-
the price or prices at which the securities purchasable upon exercise of the warrants may be purchased;
-
-
the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable, if
applicable;
-
-
a discussion of any material U.S. federal income tax considerations applicable to the exercise of the warrants;
-
-
the date on which the right to exercise the warrants will commence, and the date on which the right will expire;
-
-
the maximum or minimum number of warrants that may be exercised at any time;
-
-
the terms of any mandatory or option redemption by us;
-
-
the identity of the warrant agent;
-
-
information with respect to book-entry procedures, if any; and
-
-
any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
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DESCRIPTION OF DEPOSITARY SHARES
This section describes the general terms and provisions of the depositary shares. The applicable prospectus supplement will describe the
specific terms of the depositary shares offered by that prospectus supplement and any general terms outlined in this section that will not apply to those depositary shares.
General
We may, at our option, elect to offer depositary shares, each representing a fraction (to be set forth in the prospectus supplement relating to
a particular series of preferred stock)
of a share of a particular class or series of preferred stock as described below. In the event we elect to do so, depositary receipts evidencing depositary shares will be issued to the public.
The
shares of any class or series of preferred stock represented by depositary shares will be deposited under a deposit agreement among us, a depositary selected by us and the holders of
the depositary receipts. The depositary will be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. Subject to
the terms of the deposit agreement, each owner of a depositary share will be entitled, in proportion to the applicable fraction of a share of preferred stock represented by such depositary share, to
all the rights and preferences of the shares of preferred stock represented by the depositary share, including dividend, voting, redemption and liquidation rights. The depositary shares will be
evidenced by depositary receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of the related class or series of
preferred shares in accordance with the terms of the offering described in the applicable prospectus supplement.
Pending
the preparation of definitive depositary receipts the depositary may, upon our written order, issue temporary depositary receipts substantially identical to, and entitling the
holders thereof to all the rights pertaining to, the definitive depositary receipts but not in definitive form. Definitive depositary receipts will be prepared without unreasonable delay, and
temporary depositary receipts will be exchangeable for definitive depositary receipts without charge to the holder.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received for the preferred stock to the entitled record holders of
depositary shares in proportion to the number of depositary shares that the holder owns on the relevant record date,
provided
,
however
, that if we or the
depositary is required by law to withhold an amount on account of taxes, then the amount distributed to the holders of
depositary shares shall be reduced accordingly. The depositary will distribute only an amount that can be distributed without attributing to any holder of depositary shares a fraction of one cent. The
depositary will add the undistributed balance to and treat it as part of the next sum received by the depositary for distribution to holders of the depositary shares.
If
there is a non-cash distribution, the depositary will distribute property received by it to the entitled record holders of depositary shares, in proportion, insofar as possible, to
the number of depositary shares owned by the holders, unless the depositary determines, after consultation with us, that it is not feasible to make such distribution. If this occurs, the depositary
may, with our approval, sell such property and distribute the net proceeds from such sale to the holders. The deposit agreement also will contain provisions relating to how any subscription or similar
rights that we may offer to holders of the preferred stock will be available to the holders of the depositary shares.
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Withdrawal of Shares
Upon surrender of the depositary receipts at the corporate trust office of the depositary, unless the related depositary shares have previously
been called for redemption, converted or exchanged into our other securities, the holder of the depositary shares evidenced thereby is entitled to delivery of the number of whole shares of the related
class or series of preferred stock and any money or other property represented by such depositary shares. Holders of depositary receipts will be entitled to receive whole shares of the related class
or series of preferred stock on the basis set forth in the prospectus supplement for such class or series of preferred stock, but holders of such whole shares of preferred stock will not thereafter be
entitled to exchange them for depositary shares. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the
number of whole shares of preferred stock to be withdrawn, the depositary will deliver to such holder at the same time a new depositary receipt evidencing such excess number of depositary shares. In
no event will fractional shares of preferred stock be delivered upon surrender of depositary receipts to the depositary.
Conversion, Exchange and Redemption
If any class or series of preferred stock underlying the depositary shares may be converted or exchanged, each record holder of depositary
receipts representing the shares of preferred stock being converted or exchanged will have the right or obligation to convert or exchange the depositary shares represented by the depositary receipts.
Whenever we redeem or convert shares of preferred stock held by the depositary, the depositary will redeem or convert, at the same time, the number of depositary shares representing the preferred
stock to be redeemed or converted. The depositary will redeem the depositary shares from the proceeds it receives from the corresponding redemption of the applicable series of preferred stock. The
depositary will mail notice of redemption or conversion to the record holders of the depositary shares that are to be redeemed between 30 and 60 days before the date fixed for redemption or
conversion. The redemption price per depositary share will be equal to the applicable fraction of the redemption price per share on the applicable class or series of preferred stock. If less than all
the depositary shares are to be redeemed, the depositary will select which shares are to be redeemed by lot on a pro rata basis or by any other equitable method as the depositary may decide. After the
redemption or conversion date, the depositary shares called for redemption or conversion will no longer be outstanding. When the depositary shares are no longer
outstanding, all rights of the holders will end, except the right to receive money, securities or other property payable upon redemption or conversion.
Voting the Preferred Stock
When the depositary receives notice of a meeting at which the holders of the particular class or series of preferred stock are entitled to vote,
the depositary will mail the particulars of the meeting to the record holders of the depositary shares. Each record holder of depositary shares on the record date may instruct the depositary on how to
vote the shares of preferred stock underlying the holder's depositary shares. The depositary will try, if practical, to vote the number of shares of preferred stock underlying the depositary shares
according to the instructions. We will agree to take all reasonable action requested by the depositary to enable it to vote as instructed.
Amendment and Termination of the Deposit Agreement
We and the depositary may agree at any time to amend the deposit agreement and the depositary receipt evidencing the depositary shares. Any
amendment that (1) imposes or increases certain fees, taxes or other charges payable by the holders of the depositary shares as described in the deposit agreement or (2) otherwise
materially adversely affects any substantial existing rights of holders of depositary shares, will not take effect until such amendment is approved by the holders of at least a
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majority
of the depositary shares then outstanding. Any holder of depositary shares that continues to hold its shares after such amendment has become effective will be deemed to have agreed to the
amendment.
We
may direct the depositary to terminate the deposit agreement by mailing a notice of termination to holders of depositary shares at least 30 days prior to termination. The
depositary may terminate the deposit agreement if 90 days have elapsed after the depositary delivered written notice of its election to
resign and a successor depositary is not appointed. In addition, the deposit agreement will automatically terminate if:
-
-
the depositary has redeemed all related outstanding depositary shares;
-
-
all outstanding shares of preferred stock have been converted into or exchanged for common stock; or
-
-
we have liquidated, terminated or wound up our business and the depositary has distributed the preferred stock of the relevant series to the
holders of the related depositary shares.
Reports and Obligations
The depositary will forward to the holders of depositary shares all reports and communications from us that are delivered to the depositary and
that we are required by law, the rules of an applicable securities exchange or our restated certificate of incorporation, as amended, to furnish to the holders of the preferred stock. Neither we nor
the depositary will be liable if the depositary is prevented or delayed by law or any circumstances beyond its control in performing its obligations under the deposit agreement. The deposit agreement
limits our obligations to performance in good faith of the duties stated in the deposit agreement. The depositary assumes no obligation and will not be subject to liability under the deposit agreement
except to perform such obligations as are set forth in the deposit agreement without negligence or bad faith. Neither we nor the depositary will be obligated to prosecute or defend any legal
proceeding connected with any depositary shares or class or series of preferred stock unless the holders of depositary shares requesting us to do so furnish us with a satisfactory indemnity. In
performing our obligations, we and the depositary may rely and act upon the advice of our counsel on any information provided to us by a person presenting shares for deposit, any holder of a receipt,
or any other document believed by us or the depositary to be genuine and to have been signed or presented by the proper party or parties.
Payment of Fees and Expenses
We will pay all fees, charges and expenses of the depositary, including the initial deposit of the preferred stock and any redemption of the
preferred stock. Holders of depositary shares will pay taxes and governmental charges and any other charges as are stated in the deposit agreement for their accounts.
Resignation and Removal of Depositary
At any time, the depositary may resign by delivering notice to us, and we may remove the depositary at any time. Resignations or removals will
take effect upon the appointment of a successor depositary and its acceptance of the appointment. The successor depositary must be appointed within 90 days after the delivery of the notice of
resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000.
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DESCRIPTION OF PURCHASE CONTRACTS
This section describes the general terms and provisions of the purchase contracts. The applicable prospectus supplement will describe the
specific terms of the purchase contracts offered by that prospectus supplement and any general terms outlined in this section that will not apply to those purchase contracts.
We
may issue purchase contracts for the purchase or sale of:
-
-
debt or equity securities issued by us or securities of third parties, a basket of such securities, an index or indices of such securities or
any combination of the above as specified in the applicable prospectus supplement;
-
-
currencies; or
-
-
commodities.
Each
purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities, currencies or commodities at a
specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy our obligations, if any, with respect to any purchase
contract by delivering the cash value of such purchase contract or the cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying currencies, by delivering
the underlying currencies, as set forth in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell such
securities, currencies or commodities and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract.
The
purchase contracts may require us to make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable prospectus
supplement, and those payments may be unsecured or prefunded on some basis. The purchase contracts may require the holders thereof to secure their obligations in a specified manner to be described in
the applicable prospectus supplement. Alternatively, purchase contracts may require holders to satisfy their obligations thereunder when the purchase contracts are issued. Our obligation to settle
such pre-paid purchase contracts on the relevant settlement date may constitute indebtedness.
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DESCRIPTION OF GUARANTEES
We may offer guarantees, issued by us, of debt securities issued by our subsidiaries. Except as otherwise described in any prospectus
supplement, each guarantee will be a full and unconditional guarantee of the prompt payment, when due, of any amount owed to the holders of the debt securities of our subsidiaries, and any other
amounts due pursuant to any indenture, fiscal agency agreement or other contract governing such debt securities. We will describe the particular terms of any guarantee we offer in the applicable
prospectus supplement, which may add, update or change the information on guarantees set forth herein. You should review the documents pursuant to which the guarantee will be issued, which will be
described in more detail in the applicable prospectus supplement.
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PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the following ways from time to
time:
-
-
to underwriters or dealers for resale to the public or to other purchasers;
-
-
directly to one or more purchasers;
-
-
through agents;
-
-
through dealers;
-
-
as part of a consent solicitation; or
-
-
through a combination of any of these methods of sale.
We
will disclose in the applicable prospectus supplement any required information with respect to the selling stockholders, if any.
If
we use underwriters or dealers in the sale, the securities will be acquired by the underwriters or dealers for their own account and may be resold from time to time in one or more
transactions, including:
-
-
at a fixed price or prices, which may be changed from time to time;
-
-
in "at the market offerings" within the meaning of Rule 415(a)(4) under the Securities Act;
-
-
at prices related to such prevailing market prices; or
-
-
at negotiated prices.
For
each series of securities, the applicable prospectus supplement will set forth the terms of the offering of the securities, which may
include:
-
-
the initial public offering price;
-
-
the method of distribution, including the names of any underwriters, dealers or agents;
-
-
the purchase price of the securities;
-
-
our net proceeds from the sale of securities by us;
-
-
any underwriting discounts, agency fees, or other compensation payable to underwriters or agents;
-
-
any discounts or concessions allowed or reallowed or repaid to dealers; and
-
-
the securities exchanges on which the securities will be listed, if any.
If
we use underwriters in the sale, they will buy the securities for their own account. The underwriters may then resell the securities in one or more transactions at a fixed public
offering price or at varying prices determined at the time of sale or thereafter. The obligations of the underwriters to purchase the securities will be subject to certain conditions. The underwriters
may be obligated to purchase all the securities offered if they purchase any securities. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may
be changed from time to time. In connection with an offering, underwriters and selling group members and their affiliates may engage in transactions to stabilize, maintain or otherwise affect the
market price of the securities in accordance with applicable law.
If
we use dealers in the sale, we will sell securities to such dealers as principals. The dealers may then resell the securities in one or more transactions at a fixed offering price or
at varying prices to be
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determined
by such dealers at the time of resale. If we use agents in the sale, they may use their reasonable best efforts to solicit purchases for the period of their appointment. If we sell
directly, no underwriters would be involved. We are not making an offer of securities in any jurisdiction that does not permit such an offer.
Underwriters,
dealers and agents that participate in the securities distribution may be deemed to be underwriters as defined in the Securities Act. Any discounts, commissions or profit
they receive when they resell the securities may be treated as underwriting discounts and commissions under the Securities Act. We may have agreements with underwriters, dealers and agents to
indemnify them against certain civil liabilities, including certain liabilities under the Securities Act, or to contribute with respect to payments that they may be required to make. Underwriters,
dealers and agents may engage in transactions with, or perform services for, us or our subsidiaries in the ordinary course of their business.
We
may authorize underwriters, dealers or agents to solicit offers from certain institutions whereby the institutions contractually agree to purchase the securities from us on a future
date at a specific price. This type of contract may be made only with institutions that we specifically approve. Such institutions could include banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. The underwriters, dealers or agents will not be responsible for the validity or performance of these contracts.
Unless
otherwise specified in the applicable prospectus supplement, we will not list any securities (other than our common stock) on any exchange. The underwriters, if any, of the
securities may make a market in the securities. If the underwriters make a market in the securities, such market making may be discontinued at any time without notice. No assurance can be given as to
the liquidity of the trading market for any securities. Any guarantees of debt securities may only be resold in conjunction with the sale of the underlying debt securities.
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LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed upon for us by Skadden, Arps, Slate, Meagher & Flom LLP,
New York, New York, and for any underwriters or agents by counsel named in the applicable prospectus supplement.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements for the year
ended December 31, 2016, and the effectiveness of our internal control over financial reporting as of December 31, 2016, as set forth in their reports, which are incorporated by
reference in this prospectus and elsewhere in the registration statement. Our consolidated financial statements are, and our audited financial statements to be included in subsequently filed documents
will be, incorporated by reference in this prospectus in reliance on the reports of Ernst & Young LLP pertaining to such financial statements and the effectiveness of our internal
control over financial reporting as of the respective dates (to the extent covered by consents filed with the Securities and Exchange Commission), given on the authority of Ernst &
Young LLP as experts in accounting and auditing.
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