We are offering
$ of % Senior Notes due 20 , which will mature
on , 20 , and $ of
% Senior Notes due 20 , which will mature on ,
20 . We refer to the 20 notes and the 20 notes collectively as the notes.
Interest on the notes will be payable semi-annually in arrears on
and of each year, commencing
, 2020. We may redeem any series of notes at our option, at any time in whole or from time to time in part, at the applicable redemption price set forth
under Description of the notesOptional redemption. If we experience a change of control repurchase event with respect to a series of notes, unless we have exercised our option to redeem all notes of such series, we will be required
to offer to each holder of the notes of such series to repurchase all or any part of that holders notes at the repurchase price set forth under Description of the notesRepurchase upon change of control repurchase event.
The notes will be our unsecured obligations and will rank equally in right of payment with all of our other existing and future unsecured, senior indebtedness.
The notes will be issued only in registered form in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The notes will not be
listed on any securities exchange or quoted on any automated quotation system. Currently, there is no established trading market for the notes.
The notes will
be ready for delivery in book-entry form only through the facilities of The Depository Trust Company and its participants, including Clearstream Banking S.A. and Euroclear Bank S.A./N.V., on or about May , 2020.
This document consists of two parts. The first part is this prospectus supplement, which describes the specific terms of the offering of the
notes. The second part is the accompanying prospectus, which provides more general information, some of which may not be applicable to the offering of the notes.
This prospectus supplement and the accompanying prospectus include important information about us, the notes and other information you should review before
investing in the notes. This prospectus supplement also adds, updates and changes information contained in the accompanying prospectus. If there is any inconsistency between the information in this prospectus supplement and the
accompanying prospectus, you should rely on the information in this prospectus supplement. Before investing in the notes, you should carefully read both this prospectus supplement and the accompanying prospectus, together with the additional
information about us described under Incorporation of certain documents by reference in this prospectus supplement and under Where You Can Find More Information in the accompanying prospectus.
As used in this prospectus supplement, unless stated otherwise or the context requires otherwise, Ingredion, the Company,
we, us and our refer to Ingredion Incorporated and its consolidated subsidiaries.
This prospectus supplement and the documents incorporated by reference into this prospectus supplement or the
accompanying prospectus contain or may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the Securities Act), and Section 21E of the Securities Exchange
Act of 1934, as amended (the Exchange Act). We intend these forward-looking statements to be covered by the safe harbor provisions for such statements. These forward-looking statements include, among others, any statements
regarding our prospects or future financial condition, earnings, revenues, tax rates, capital expenditures, expenses or other financial items, any statements concerning our future operations, including managements plans or strategies and
objectives therefor, and any assumptions, expectations or beliefs underlying the foregoing. These statements can sometimes be identified by the use of forward-looking words such as may, will, should,
anticipate, assume, believe, plan, project, estimate, expect, intend, continue, pro forma, forecast,
outlook, propels, opportunities, potential, provisional or other similar expressions or the negative thereof. All statements other than statements of historical facts in this
prospectus supplement or the documents incorporated by reference into this prospectus supplement or the accompanying prospectus are forward-looking statements. These statements are based on current circumstances or expectations, but are
subject to certain risks and uncertainties, many of which are difficult to predict and are beyond our control. Although we believe our expectations reflected in these forward-looking statements are based on reasonable assumptions, no assurance
can be given that our expectations will prove correct. Accordingly, you should not place undue reliance on our forward-looking statements.
Actual results
and developments may differ materially from the expectations expressed in or implied by our forward-looking statements as a result of the following risks and uncertainties, among others:
Forward-looking statements speak only as of the date on which they are made and we do not undertake any obligation to update any forward-looking statement to
reflect events or circumstances after the date of the statement as a result of new information or future events or developments. If we do update or correct one or more of these statements, investors and others should not conclude that we will
make additional updates or corrections. For a further description of the risks and uncertainties referred to above and other risks and uncertainties, see the information described below under the heading Risk factors.
In December 2019, a novel strain of coronavirus (COVID-19) was reported to have surfaced in Wuhan,
China. COVID-19 has since spread to over 100 countries, including every state in the United States. On March 11, 2020 the World Health Organization declared COVID-19 a pandemic, and on March 13, 2020 the United States declared a national emergency
with respect to COVID-19. As it is difficult to predict the progression of the pandemic, including government responses and the timing of recovery, there is a range of potential outcomes for our financial performance in future periods. COVID-19
adversely affected our net sales in our Asia-Pacific segment in the first quarter of 2020, and we are experiencing reductions in the demand for our products throughout our markets in the second quarter of 2020.
Our global operations expose us to risks associated with public health crises, including pandemics such as COVID-19. We continue to monitor the health of the
employees in each of our 43 manufacturing facilities, domestically and outside the United States, as COVID-19-related illness at a particular location could impact continued plant operations at that location.
Foreign governmental organizations and governmental organizations at the national, state and local levels in the United States have taken various actions to
combat the spread of COVID-19, including imposing stay-at-home orders that effectively close non-essential businesses and their operations. Because we manufacture food ingredients, our operations are currently considered
essential under most current COVID-19 government regulations, thus permitting us to continue operations at our facilities and sales activities consistent with those regulations.
Certain of our customers, however, are deemed to be non-essential industries and businesses under governmental regulations. The industries and
businesses deemed non-essential vary by country and region. For example, Mexico declared one or more brewing producers as non-essential industries during the pandemic. Our customers in affected industries are not able to
produce goods during the government-mandated closures, which adversely affects customer demand for our products. Further, government-enacted stay-at-home orders have significantly limited the end-consumers ability in the United States and
foreign markets to purchase certain food or beverage products due to limitations on the operations of restaurants, bars and regionally specific sales channels. We expect that these limitations over time will continue to negatively affect customer
demand for our products, further impacting our revenues and our operating results. In addition, any inability by our customers to produce goods may delay our customers ability to pay outstanding receivables, which would adversely impact our
cash flow from operations and working capital.
In addition, COVID-19 has impacted and may further impact the broader economies of affected countries,
including negatively affecting economic growth, the proper functioning of financial and capital markets, foreign
currency exchange rates, and interest rates. These impacts could have the effect of heightening many of the risks we described in the Risk Factors section and elsewhere in our Annual
Report on Form 10-K for the year ended December 31, 2019. Such risks include, in addition to those described above, negative impacts on our cost of and access to capital, pressure to extend our customers payment terms, insolvency of our
customers resulting in increased provisions for credit losses, and counterparty failures in our supply chain, customer network or otherwise that would negatively impact our operations. These risks individually and in the aggregate could have a
material adverse effect on our operating results, financial condition, cash flows and prospects.
The notes will be our unsecured obligations and will rank equally in right of payment with all of our other existing and future unsecured, senior obligations.
The notes will not be secured by any of our assets. Any future claims of secured lenders with respect to assets securing their loans will be prior to any claim of the holders of the notes with respect to those assets.
Our subsidiaries are separate and distinct legal entities from us. Our subsidiaries have no obligation to pay any amounts due on the notes. In
addition, any payment of dividends, loans or advances by our subsidiaries to us could be subject to statutory or contractual restrictions. Payments to us by our subsidiaries will also be contingent upon the subsidiaries earnings and
business considerations. Our right to receive any assets of any of our subsidiaries upon their bankruptcy, liquidation, reorganization or winding up, and therefore the right of the holders of the notes to participate in those assets, will be
effectively subordinated to the claims of that subsidiarys creditors, including trade creditors. In addition, even if we are a creditor of any of our subsidiaries, our right as a creditor would be subordinate to any security interest in
the assets of our subsidiaries and any indebtedness of our subsidiaries senior to the indebtedness held by us. At March 31, 2020, we had approximately $1.9 billion of indebtedness outstanding on a consolidated basis, approximately
$77 million of which was subsidiary indebtedness that will be structurally senior to the notes.
The notes will not be secured by any of our assets or any of our
subsidiaries assets. Therefore, the notes will be effectively subordinated in right of payment to our secured indebtedness to the extent of the value of the assets securing that indebtedness. Our assets securing indebtedness will be subject to
the prior claims of our secured creditors. In the event of our bankruptcy, liquidation, reorganization or winding up, our assets that secure debt will be available to pay our other obligations, including the notes, only after all debt secured by
those assets has been repaid in full. There can be no assurance that any of our assets will remain following the application to pay such secured debt. If there are any remaining assets, holders of notes will participate in such assets ratably with
all remaining unsecured creditors, including trade creditors.
The notes will not, and the indenture under which the notes will be
issued does not, place any limitation on the amount of unsecured debt that may be incurred by us. Our incurrence of additional debt may have important consequences for you as a holder of the notes, including making it more difficult for us to
satisfy our obligations with respect to the notes, a loss in the market value of your notes and a risk that the credit rating of the notes is lowered or withdrawn.
Furthermore, the indenture governing the notes does not prohibit us from engaging in many types of transactions, including certain acquisitions, refinancings,
recapitalizations or other similar transactions that could increase the total amount of our indebtedness, adversely affect our capital structure or credit ratings or otherwise adversely affect the market value of the notes. In addition, the
indenture governing the notes does not require us to maintain any financial ratios or specific levels of net worth, revenues, income, cash flow or liquidity and, accordingly, will not protect holders of the notes in the event that we experience
significant adverse changes in our financial condition or results of operations.
Our credit ratings are an assessment by rating agencies of our
ability to pay our debts when due. Consequently, real or anticipated changes in our credit ratings will generally affect the market value of the notes. The credit ratings may not reflect the potential impact of risks relating to the
structure or marketing of the notes. Agency ratings are not a recommendation to buy, sell or hold any security, and may be revised or withdrawn at any time by the issuing organization. Each agencys rating should be evaluated
independently of any other agencys rating.
Furthermore, these ratings are subject to ongoing evaluation by credit rating agencies and there can be
no assurance that a rating will remain for any given period of time or that a rating will not be lowered, suspended or withdrawn entirely by a rating agency, placed on a so-called watch-list for a
possible downgrade, or assigned a negative ratings outlook if in such rating agencys judgment circumstances so warrant. The assignment by a rating agency of a rating on the notes lower than the rating expected by investors or actual or
anticipated changes or downgrades in our credit ratings, including announcements that our ratings are under review for a downgrade or have been assigned a negative outlook, would likely adversely affect any trading market for, and the market value
of, the notes and also increase our borrowing costs.
The notes are new issues of securities for which there currently is no
established trading market. We do not intend to list any series of the notes on any securities exchange or apply for quotation on any automated quotation system. While the underwriters of the notes have advised us that they intend to make
a market in each series of notes, the underwriters will not be obligated to do so and may stop their market making at any time. No assurance can be given:
As described under Description of the notesOptional redemption, we will have the option to redeem the notes of any series in whole at any
time or from time to time in part. We may choose to exercise this redemption right when prevailing interest rates are relatively low. As a result, you may not be able to reinvest the redemption proceeds in a comparable security at an
effective interest rate as high as that of the series of notes redeemed.
Our ability to make scheduled payments of principal and interest or to satisfy our obligations in respect of
our indebtedness or to refinance our indebtedness will depend on our future operating performance. Prevailing economic conditions (including interest rates) and financial, business and other factors, many of which are beyond our control, may also
affect our ability to meet these obligations. We may not be able to generate sufficient cash flows from operations, or obtain future borrowings, in an amount sufficient to enable us to pay our indebtedness, or to fund our other liquidity needs. We
may need to refinance all or a portion of our indebtedness on or before maturity. We may not be able to refinance any of our indebtedness when needed on commercially reasonable terms, or at all.
Upon the occurrence of a Change of Control Repurchase Event (as defined under Description of the notesDefinitions) with respect to a series
of notes, unless we have exercised our option to redeem all notes of such
series, we will be required to offer to each holder of the notes of such series to repurchase all or any part of that holders notes at a repurchase price equal to 101% of the principal
amount of the notes to be repurchased, plus accrued and unpaid interest to, but excluding, the repurchase date. If we experience a Change of Control Repurchase Event with respect to one or more series of notes, we might not have sufficient
financial resources available to satisfy our obligations to repurchase such series of notes. Our failure to repurchase a series of notes as required under the terms of that series of notes would result in a default under the indenture, which
could have material adverse consequences for us and the holders of the notes. See Description of the notesRepurchase upon change of control repurchase event.
The condition of the financial markets and prevailing interest rates have fluctuated in the past and are likely to fluctuate in the future. In general, as
market interest rates rise, debt securities bearing interest at fixed rates of interest decline in value. Consequently, if you purchase notes and market interest rates increase, the market values of your notes may decline. We cannot predict the
future level of market interest rates.
The net proceeds to us from the sale of the notes will be approximately
$ million after deducting the underwriting discounts and other estimated expenses of the offering payable by us. We intend to use the net proceeds of
this offering to repay all or a portion of the outstanding indebtedness under our senior, unsecured $1 billion revolving credit facility and our 4.625% senior notes due 2020 (the 2020 notes).
As of March 31, 2020, we had approximately $312 million of indebtedness outstanding under our revolving credit facility, which accrued interest at a
weighted average annual rate of 2.07%. The revolving credit facility matures on October 11, 2021, subject to extension.
As of March 31, 2020,
we had $400 million aggregate principal amount outstanding under the 2020 notes, which mature on November 1, 2020.
The net proceeds not used to
repay outstanding indebtedness referred to above will be used for general corporate purposes, including:
We will temporarily invest any net proceeds not used immediately in short-term, interest-bearing obligations.
As a result of our intended use of the net proceeds from this offering to repay all or a portion of the outstanding indebtedness under our revolving credit
facility and the 2020 notes, certain of the underwriters and/or their affiliates may receive more than 5% of the net proceeds of this offering, not including underwriting compensation, thus creating a conflict of interest within the meaning of FINRA
Rule 5121. Accordingly, this offering is being made in compliance with the requirements of FINRA Rule 5121. The appointment of a qualified independent underwriter is not necessary in connection with this offering as the notes are
investment grade rated securities. See Underwriting (conflicts of interest)Conflicts of interest.
Capitalization
The following table sets forth our cash and cash equivalents and total capitalization as of March 31, 2020:
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on an actual basis; and
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on an as adjusted basis to give effect to the sale of the notes in this offering.
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|
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March 31, 2020
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(unaudited, in millions)
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Actual
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As adjusted
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Cash and cash equivalents
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$
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278
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|
|
$
|
|
|
Total short-term debt
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|
|
77
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|
|
|
77
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|
|
|
|
|
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Long-term debt:
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|
|
|
|
|
|
|
|
Revolving credit facility
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|
|
312
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|
|
|
312
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Term loan
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|
|
405
|
|
|
|
405
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4.625% Senior Notes due 2020
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|
|
400
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|
|
|
400
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3.20% Senior Notes due 2026
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|
|
497
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|
|
|
497
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6.625% Senior Notes due 2037
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|
253
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|
|
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253
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% Senior Notes due 20 offered
hereby
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% Senior Notes due 20 offered
hereby
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Fair value adjustment related to hedged fixed rate debt instruments
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4
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4
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Total long-term debt
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1,871
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Share based payments subject to redemption
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23
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23
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Ingredion stockholders equity:
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Common stock (par value $0.01)
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1
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1
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Additional paid-in capital
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1,142
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1,142
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Less: Treasury stock at cost
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(1,028)
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(1,028)
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Accumulated other comprehensive loss
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(1,322)
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(1,322)
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Retained earnings
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3,813
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3,813
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Total Ingredion stockholders equity
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2,606
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2,606
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Non-controlling interests
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21
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21
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Total capitalization
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$
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4,521
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$
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S-14
Description of the notes
The following description of the particular terms of the notes offered hereby supplements the description of the general terms and provisions of the
debt securities set forth in the section of the accompanying prospectus entitled Description of Debt Securities, to which reference is made.
The notes will be issued under an indenture dated as of August 18, 1999 between us and The Bank of New York Mellon Trust Company, N.A. (as successor
trustee to The Bank of New York), as trustee (the Trustee). We will offer the 20 notes and the 20 notes as separate series under the indenture. Each series of notes will be issued under, and
will be subject to the terms of, a supplemental indenture entered into by us and the Trustee pursuant to the indenture.
We have summarized selected
provisions of the indenture and each series of notes below. This summary is not complete and is qualified in its entirety by reference to the indenture. If you would like more information on the provisions of the indenture, you should
review the indenture, which is filed as an exhibit to the registration statement of which this prospectus supplement is a part. You should carefully read the summary below, the accompanying prospectus and the provisions of the indenture before
investing in the notes.
References in this section of the prospectus supplement to Ingredion, the Company, we,
us and our are only to Ingredion Incorporated, the issuer of the notes, and not to its subsidiaries.
General
The 20 notes will mature on , 20 . The
20 notes will bear interest at the rate of % per year, payable semi-annually in arrears on and
of each year, commencing , 2020.
The 20 notes will mature on , 20 . The
20 notes will bear interest at the rate of % per year, payable semi-annually in arrears on and
of each year, commencing , 2020.
Interest on the notes will accrue from May , 2020. Interest will be paid to the person in whose name the note is registered,
subject to certain exceptions as provided in the indenture, at the close of business on the or , as the
case may be, immediately preceding the applicable interest payment date. Interest on the notes will be computed on the basis of a 360-day year consisting of twelve
30-day months. Principal and interest will be payable, and the notes will be transferable or exchangeable, at the office or offices or agency maintained by us for these purposes. Payment of interest on
the notes may be made at our option by check mailed to the registered holders.
The notes will be unsecured obligations of the Company and will rank
equally in right of payment with all of our other existing and future unsecured, senior indebtedness. The notes will be effectively subordinated in right of payment to all of the Companys existing and future secured indebtedness to the
extent of the value of the assets securing that indebtedness. The notes will also be structurally subordinated in right of payment to all existing and future indebtedness and other liabilities of our subsidiaries, including trade
payables. Since we conduct many of our operations through our subsidiaries, our right to participate in any distribution of the assets of a subsidiary upon its bankruptcy, liquidation, reorganization or winding up is subject to the prior claims
of the creditors of the subsidiary. This means that your right as a holder of our notes will also be subject to the prior claims of these creditors if a subsidiary becomes subject to bankruptcy, liquidates or reorganizes, or winds up its
business. Unless we are considered a creditor of the subsidiary, your claims will be recognized behind these creditors. At March 31, 2020, we had approximately $1.9 billion of indebtedness outstanding on a consolidated basis,
none of which was secured indebtedness and approximately $77 million of which was subsidiary indebtedness that will be structurally senior to the notes.
The indenture does not limit the amount of unsecured notes, debentures or other evidences of indebtedness that we may issue under the indenture and provides
that notes, debentures or other evidences of indebtedness may be
S-15
issued from time to time in one or more series. We may, from time to time, without giving notice to or seeking the consent of the holders or beneficial owners of the notes,
reopen any series of notes offered hereby by issuing additional notes having the same ranking, interest rate, maturity and other terms (except for the issue date, issue price and, in some cases, the first interest payment date, and the
date from which interest will begin to accrue) as the notes of such series. Any additional notes having such similar terms, together with such series of notes, will constitute a single series of securities under the indenture, provided that if
such additional notes are not fungible with the notes of such series offered hereby for U.S. federal income tax purposes, such additional notes shall have separate CUSIP, ISIN and other identifying numbers.
Any payment otherwise required to be made in respect of the notes on a date that is not a business day for the notes may be made on the next succeeding
business day with the same force and effect as if made on that date. No additional interest shall accrue as a result of such delayed payment. A business day is defined in the indenture as a day other than a Saturday, Sunday or other day on
which banking institutions in New York City, or any other city in which the paying agent is being utilized, are authorized or obligated by law or executive order to close.
The notes will be issued only in fully registered form without coupons and in denominations of $2,000 or in integral multiples of $1,000 in excess
thereof. No service charge will be made for any transfer or exchange of the notes, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange. The notes of
each series will be represented by one or more global securities registered in the name of a nominee of The Depository Trust Company (DTC). Except as described in the accompanying prospectus under Description of Debt
SecuritiesBook-Entry, the notes will not be issuable in certificated form.
Optional redemption
At any time and from time to time, in the case of the 20 notes, prior to
, 20 (the date that is months prior to their maturity date) (the
20 Par Call Date), and, in the case of the 20 notes, prior to , 20 (the date that is
months prior to their maturity date) (the 20 Par Call Date), the 20 notes and the 20 notes
will be redeemable at our option at a redemption price equal to the greater of:
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100% of the principal amount of the notes to be redeemed; and
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(i) in the case of the 20 notes, the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such payments of interest accrued as of the date of redemption) from the redemption date to the 20 Par Call Date, discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below), plus
basis points, and (ii) in the case of the 20 notes, the sum of the present values of the remaining scheduled payments of principal and interest
thereon (not including any portion of such payments of interest accrued as of the date of redemption) from the redemption date to the 20 Par Call Date, discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus basis points;
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plus, in each case, accrued and unpaid interest to, but excluding, the redemption date of the notes to be redeemed.
At any time and from time to time on or after the 20 Par Call Date, we may redeem the 20 notes, in whole or in
part, at our option, at a redemption price equal to 100% of the principal amount of the 20 notes to be redeemed, plus accrued and unpaid interest to, but excluding, the redemption date.
At any time and from time to time on or after the 20 Par Call Date, we may redeem the 20 notes, in whole or in
part, at our option, at a redemption price equal to 100% of the principal amount of the 20 notes to be redeemed, plus accrued and unpaid interest to, but excluding, the redemption date.
S-16
Notwithstanding the foregoing, installments of interest on notes that are due and payable on interest payment
dates falling on or prior to a redemption date will be payable on the interest payment date to the registered holders as of the close of business on the relevant record date according to the notes and the indenture.
For purposes of our option to redeem a series of notes:
Comparable Treasury Issue means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the
remaining term of the notes to be redeemed, calculated, (i) in the case of the 20 notes, as if the maturity date of such notes were the 20 Par Call Date, and (ii) in the case of the
20 notes, as if the maturity date of such notes were the 20 Par Call Date (in the case of each of the 20 notes and the 20 notes, the Remaining
Term), that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the Remaining Term of the applicable series of notes.
Comparable Treasury Price means, with respect to any redemption date, (i) the average of four Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if we are provided with fewer than four such Reference Treasury Dealer Quotations, the average of all such
quotations, or (iii) if only one Reference Treasury Dealer Quotation is received, such quotation.
Quotation Agent means the
Reference Treasury Dealer appointed by us.
Reference Treasury Dealer means (i) each of BofA Securities, Inc., Citigroup Global
Markets Inc., J.P. Morgan Securities LLC (or their respective affiliates that are Primary Treasury Dealers) and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City, which we refer to as a Primary Treasury Dealer, we will substitute therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer(s) selected by us.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as
determined by us, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to us by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the
third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per annum equal
to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
Notice of any redemption will be sent (or, in the case of global securities, delivered in accordance with DTCs procedures) at least 10 days
but not more than 60 days before the redemption date to each holder of the series of notes to be redeemed (which notice, so long as such series of notes is represented by a global security, will be given to DTC (or its nominee) or a successor
depositary (or its nominee)). Unless we default in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the series of notes or portions thereof called for redemption. If less than all of the
notes of a series are to be redeemed, the notes to be redeemed shall be selected by lot by DTC, in the case of notes represented by a global security, or by the Trustee by a method the Trustee deems to be fair and appropriate, in the case of notes
that are not represented by a global security.
Sinking fund
The notes will not be entitled to any sinking fund.
Repurchase upon change of control repurchase event
If a
Change of Control Repurchase Event (as defined below) occurs with respect to a series of notes, unless we have exercised our option to redeem all notes of such series as described above, we will be required to make an
S-17
offer to each holder of the notes of such series to repurchase all or any part (equal to $2,000 or in integral multiples of $1,000 in excess thereof) of that holders notes at a repurchase
price in cash equal to 101% of the principal amount of the notes to be repurchased, plus accrued and unpaid interest to, but excluding, the repurchase date. Within 30 days following any Change of Control Repurchase Event or, at our option,
prior to any Change of Control (as defined below), but after the public announcement of an impending Change of Control, we will mail a notice to each holder of the notes of such series (or, in the case of global securities, give notice in accordance
with DTCs procedures), with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the notes of such series on the payment date
specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed or delivered. The notice shall, if mailed or delivered prior to the date of consummation of the Change
of Control, state that the offer to repurchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.
Holders electing to have a note or portion thereof repurchased in connection with a Change of Control Repurchase Event will be required to surrender the note
(which, in the case of global securities, must be made in accordance with the procedures of DTC, as depositary for the notes) to the Trustee under the indenture (or to such other person as may be designated by us for such purpose) as provided in the
applicable notice prior to the close of business on the third business day immediately preceding the payment date for such Change of Control Repurchase Event and to comply with other procedures and requirements set forth in such notice.
We will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of a series of notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws
or regulations conflict with the Change of Control Repurchase Event provisions of the notes, we will comply with the applicable securities laws and regulations and will not be deemed to have breached our obligations under the Change of Control
Repurchase Event provisions of the notes by virtue of such conflict.
On the Change of Control Repurchase Event payment date, we will, to the extent
lawful:
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accept for payment all notes or portions of notes (equal to $2,000 or in integral multiples of $1,000 in excess
thereof) properly tendered pursuant to our offer;
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deposit with the paying agent an amount equal to the aggregate repurchase price in respect of all notes or
portions of notes properly tendered; and
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deliver or cause to be delivered to the Trustee the notes properly accepted, together with an officers
certificate stating the aggregate principal amount of notes being purchased by us.
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Interest on the notes and portions of a note
properly tendered for repurchase pursuant to a Change of Control Repurchase Event and not withdrawn will cease to accrue on and after the payment date for such Change of Control Repurchase Event, unless we shall have failed to accept such notes and
such portions of notes for payment or failed to deposit the aggregate purchase price in respect thereof in accordance with the immediately preceding paragraph.
The paying agent will promptly mail to each holder of notes properly tendered the repurchase price for the notes, and the Trustee will promptly authenticate
and mail (or cause to be transferred by book-entry) to each holder a new note equal in principal amount to any unpurchased portion of any notes surrendered; provided, that each new note will be in a principal amount of $2,000 or an integral multiple
of $1,000 in excess thereof.
We will not be required to make an offer to repurchase the notes upon a Change of Control Repurchase Event if a third party
makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by us and such third party purchases all notes properly tendered and not withdrawn under its offer.
Our obligation to purchase notes tendered by holders following a Change of Control Repurchase Event may not provide holders of notes protection in the event
of a highly leveraged transaction, reorganization, merger or
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similar transaction involving us that could adversely affect holders of the notes. Also, the definition of Change of Control (see DefinitionsChange of
Control below) includes the concept of the sale, transfer, conveyance or disposition of all or substantially all of the properties or assets of us and our subsidiaries, taken as a whole. There is no precise definition of
all or substantially all under applicable law and only limited case law interpreting that phrase. Therefore, our obligation to offer to repurchase the notes as a result of a disposition of less than all of our properties and assets
on a consolidated basis may be uncertain.
To the extent that we are required to offer to repurchase a series of notes upon the occurrence of a Change of
Control Repurchase Event, we may have a similar obligation with regard to certain of our other indebtedness. We may not have sufficient funds to repurchase such notes and such other indebtedness for cash at that time. In addition, our ability to
repurchase such notes or such other indebtedness for cash may be limited by law or the terms of other agreements relating to our indebtedness that is outstanding at the time. The failure to make a required repurchase of notes would result in a
default under the indenture.
The Change of Control Repurchase Event covenant shall cease to be applicable to the notes and we shall be released from our
obligations thereunder with respect to the notes (and any failure by us to comply therewith shall not constitute a default or event of default under the indenture) if we shall have effected legal defeasance, covenant
defeasance or satisfaction and discharge (as those terms are defined in the accompanying prospectus under Description of Debt SecuritiesDefeasance of Debt Securities and Certain Covenants and
Satisfaction and Discharge) with respect to the notes.
We have no present intention to engage in a transaction involving a Change of
Control, although it is possible that we would decide to do so in the future. In the future, we could enter into certain transactions, including acquisitions, refinancings or other recapitalizations, that would not constitute a Change of Control,
but that could increase the amount of debt outstanding at such time or otherwise affect our capital structure or credit ratings and adversely affect the value of the notes.
Definitions
For purposes of our repurchase obligation
with respect to a series of notes upon the occurrence of a Change of Control Repurchase Event:
Below Investment Grade Rating Event
means, with respect to a series of notes, such notes are rated below Investment Grade by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating of such series of notes is under publicly announced consideration for possible
downgrade by any of the Rating Agencies).
Change of Control means the occurrence of any of the following: (1) the direct or
indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of Ingredion and its subsidiaries taken as a
whole to any person (as that term is used in Section 13(d)(3) of the Exchange Act), other than Ingredion or one of its subsidiaries; or (2) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any person (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of
Voting Stock.
Change of Control Repurchase Event means, with respect to a series of notes, the occurrence of both a Change of Control
and a Below Investment Grade Rating Event.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under
any successor rating categories of Moodys); a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P); or the equivalent investment grade credit rating
from any additional Rating Agency or Rating Agencies selected by us.
Moodys means Moodys Investors Service, Inc. and any
successor to its rating agency business.
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Rating Agency means (1) each of Moodys and S&P; and (2) if either of
Moodys or S&P ceases to rate the notes or fails to make a rating of the notes publicly available for reasons outside of our control, a nationally recognized statistical rating organization within the meaning of
Section 3(a)(62) of the Exchange Act, selected by us as a replacement agency for Moodys or S&P, as the case may be.
S&P means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
Voting Stock means Ingredion capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar functions) of Ingredion, even if the right so to vote has been suspended by the happening of such a contingency.
Events of default
With respect to each of the
20 notes and the 20 notes, Events of Default means any one of the following events which shall have occurred and be continuing:
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default in the payment of any interest upon any of the notes of such series when due that continues for 30 days
after payment is due;
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default in the payment of all or any part of the principal of (or premium, if any, on) any of the notes of such
series when due;
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default in the deposit of any sinking fund or analogous payment in respect of the notes of such series when due;
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default in the performance, or breach, of any covenant or warranty in the notes of such series or in the
indenture (other than as elsewhere specifically provided for) and continuance of such default or breach for a period of 90 days after there has been given to us by the Trustee or to us and the Trustee by the holders of not less than 25% in aggregate
principal amount of the notes of all series then outstanding affected thereby a written notice specifying such default or breach and requiring it to be remedied;
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default in the payment when due of any scheduled principal on any Indebtedness (as defined in the indenture) at
maturity having an aggregate principal amount outstanding of at least $100 million or its equivalent in another currency (but excluding Indebtedness evidenced by the notes or otherwise arising under the indenture);
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a default in the performance of any other term or provision of any such Indebtedness which default shall have
resulted in such Indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such Indebtedness having been discharged or such acceleration having been rescinded or
annulled within the later of (x) the period specified in such instrument and (y) 15 days after written notice to us by the Trustee or holders of at least 25% of the aggregate principal amount of the notes of such series then
outstanding; or
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certain events of bankruptcy, insolvency or reorganization involving us.
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Defeasance
The notes are subject to legal defeasance
and covenant defeasance as described under Description of Debt SecuritiesDefeasance of Debt Securities and Certain Covenants in the accompanying prospectus.
Reports
As long as any notes are outstanding, we will
file with the Trustee, within 15 days after we file the same with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules
and regulations prescribe) which we may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act. The filing of such reports, information and documents with the SEC will constitute the filing of such
reports, information and documents with the Trustee so long as we provide a physical or electronic copy thereof to the Trustee promptly following a request therefor from the Trustee.
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Material U.S. federal income tax considerations
The following discussion summarizes the material United States federal income tax considerations of the purchase, ownership and disposition of the notes. The
following discussion does not purport to be a complete analysis of all potential tax effects. The discussion is based upon the Internal Revenue Code of 1986, as amended (the Code), United States Treasury Regulations, rulings and
pronouncements of the Internal Revenue Service (the IRS), and judicial decisions in effect as of the date of this prospectus supplement, any of which subsequently may be changed, possibly retroactively, or interpreted differently by the
IRS, so as to result in United States federal income tax consequences different from those discussed below.
The following discussion does not address all
of the United States federal income tax consequences that may be relevant to a holder in light of such holders particular circumstances or to holders subject to special rules, such as financial institutions, insurance companies, dealers in
securities or currencies, partnerships or other pass-through entities, expatriates, tax-exempt organizations, persons holding the notes as part of a straddle, hedge, conversion or constructive sale, or other
integrated transaction for tax purposes, regulated investment companies, real estate investment trusts, traders in securities that elect to use a mark-to-market method
of accounting for their securities, former citizens or residents of the United States, accrual method taxpayers that are required to recognize income for United States federal income tax purposes no later than when such income is taken into account
in applicable financial statements, and United States Holders (as defined below) with a functional currency other than the U.S. dollar. In addition, this summary deals only with a note held as a capital asset within the
meaning of Section 1221 of the Code by a beneficial owner who purchases the note on original issuance at the first price at which a substantial amount of the notes of that series are sold for cash to persons other than bond houses, brokers or
similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers, which we refer to as the issue price. Moreover, the effect of any alternative minimum tax, the Medicare tax on investment income,
applicable state, local or foreign tax laws or of United States federal tax law other than income taxation is not discussed.
As used herein, United
States Holder means a beneficial owner of notes who or that is:
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(1)
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an individual who is a citizen or resident of the United States, including an alien resident who is a lawful
permanent resident of the United States or meets the substantial presence test under Section 7701(b) of the Code;
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(2)
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a corporation (or other entity treated as a corporation for United States federal income tax purposes) created
or organized in or under the laws of the United States, any state thereof or the District of Columbia;
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(3)
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an estate, the income of which is subject to United States federal income taxation regardless of its source; or
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(4)
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a trust if (i) (A) a United States court is able to exercise primary supervision over the administration
of the trust and (B) one or more United States persons have authority to control all substantial decisions of the trust, or (ii) the trust has a valid election in effect under applicable United States Treasury Regulations to be treated as
a United States person.
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As used herein, a non-United States Holder means a
beneficial owner of notes, other than a partnership (or other entity treated as a partnership for United States federal income tax purposes), who or that is not a United States Holder.
If a partnership (including for this purpose any entity treated as a partnership for United States federal income tax purposes) is a beneficial owner of
notes, then the tax treatment of a partner in the partnership generally will depend upon the status of the partner and upon the activities of the partnership. A holder of notes that is a partnership, and partners in such partnership, are urged to
consult their tax advisers about the United States federal income tax consequences of purchasing, owning and disposing of the notes.
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We have not sought and will not seek any rulings from the IRS with respect to the matters discussed below. There
can be no assurance that the IRS will not take a different position concerning the tax consequences of the purchase, ownership or disposition of the notes or that any such position would not be sustained.
PERSONS CONSIDERING THE PURCHASE OF NOTES ARE URGED TO CONSULT THEIR INDEPENDENT TAX ADVISERS WITH REGARD TO THE APPLICATION OF THE TAX CONSEQUENCES
DISCUSSED BELOW TO THEIR PARTICULAR SITUATIONS, AS WELL AS THE APPLICATION OF ANY STATE, LOCAL, FOREIGN OR OTHER TAX LAWS, INCLUDING GIFT AND ESTATE TAX LAWS.
Contingent payments
In certain circumstances (see
Description of the notesRepurchase upon change of control repurchase event), we may be obligated to pay amounts on the notes that are in excess of stated interest on or principal of the notes. We intend to take the position that
the likelihood that we will be required to make such payments is remote as of the issue date of the notes and therefore that these provisions do not cause the notes to be treated as contingent payment debt instruments within the meaning
of the applicable Treasury Regulations. Additional income, however, will be recognized by a holder of notes if any such additional payment is made. Our position that the contingencies described above are remote is binding on a holder, unless the
holder discloses in the proper manner to the IRS that it is taking a different position. If the IRS successfully challenged our position, then the notes could be treated as contingent payment debt instruments, in which case holders could be required
to accrue interest income at a rate higher than the stated interest rate on the notes and to treat as ordinary income, rather than capital gain, any gain recognized on a sale, exchange, retirement or redemption of a note. The remainder of this
discussion assumes that the notes will not be treated as contingent payment debt instruments.
United States Holders
Interest
Interest on the notes generally will be
taxable to a United States Holder as ordinary income at the time that it is paid or accrued, in accordance with the United States Holders method of accounting for United States federal income tax purposes.
This discussion assumes that the notes of each series will be issued with less than a de minimis amount of original issue discount. If, however, the
principal amount of the notes of any series exceeds their issue price by at least a de minimis amount, as determined under applicable Treasury Regulations, a United States Holder will be required to include such excess of principal
amount over issue price in income as original issue discount, as it accrues, in accordance with a constant-yield method based on a compounding of interest, before the receipt of cash payments attributable to this income.
Sale, retirement, redemption or other taxable disposition of a note
A United States Holder of a note will recognize gain or loss upon the sale, retirement, redemption or other taxable disposition of such note in an amount
equal to the difference between:
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(1)
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the amount of cash and the fair market value of other property received in exchange therefor (other than
amounts attributable to accrued but unpaid stated interest, which will be subject to tax as ordinary income to the extent not previously included in income); and
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(2)
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the United States Holders adjusted tax basis in such note, which will, in general, be the price paid for
the note by the United States Holder.
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Any gain or loss recognized on a taxable disposition of such note generally will be capital gain
or loss. Such capital gain or loss generally will be long-term capital gain or loss if the note has been held by the United States
S-22
Holder for more than one year. Otherwise, such capital gain or loss will be a short-term capital gain or loss. In the case of certain non-corporate United
States Holders (including individuals), long-term capital gain generally is subject to United States federal income taxation at preferential rates. The deductibility of capital losses is subject to certain limitations.
Non-United States Holders
Interest
Subject to the discussion below of
backup withholding and FATCA (as defined below), interest paid to a non-United States Holder of the notes will not be subject to United States federal withholding tax under the portfolio interest
exception, provided that:
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(1)
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the non-United States Holder does not actually or constructively own
10% or more of the total combined voting power of all classes of our stock;
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(2)
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the non-United States Holder is not:
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(A)
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a controlled foreign corporation that is related to us through stock ownership, or
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(B)
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a bank that received the note on an extension of credit made pursuant to a loan agreement entered into in the
ordinary course of its trade or business; and
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(3)
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the beneficial owner of the note provides a certification, signed under penalties of perjury, that it is not a
United States person, which certification generally is made on an IRS Form W-8BEN or W-8BEN-E, as applicable, or a suitable
substitute form.
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Interest paid to a non-United States Holder that does not qualify for the
portfolio interest exception and that is not effectively connected to a United States trade or business (or, if required by an applicable income tax treaty, is not attributable to a United States permanent establishment) will be subject to United
States federal withholding tax at a rate of 30%, unless a United States income tax treaty applies to reduce or eliminate withholding.
A non-United States Holder generally will be subject to tax in the same manner as a United States Holder with respect to interest, at regular graduated United States federal income tax rates, and such non-United States Holder generally will be exempt from the 30% withholding tax provided the certification requirements discussed below are satisfied, if such amounts are effectively connected with the conduct of a
trade or business by the non-United States Holder in the United States and, if an applicable tax treaty requires, such interest is attributable to a United States permanent establishment maintained by the non-United States Holder. Such effectively connected income received by a non-United States Holder which is a corporation may be subject in some circumstances to an additional
branch profits tax at a 30% rate or, if applicable, a lower treaty rate.
To claim the benefit of a lower treaty rate or to claim exemption
from withholding because the income is effectively connected with a United States trade or business, the non-United States Holder must provide a properly executed IRS Form
W-8BEN or W-8BEN-E, as applicable, or a suitable substitute form claiming an exemption from or reduction in withholding under the
benefit of an applicable income tax treaty, or IRS Form W-8ECI or a suitable substitute form stating that interest paid on the notes is not subject to withholding tax because it is effectively connected with
the non-United States Holders conduct of a trade or business in the United States, as applicable. Such certificate must contain, among other information, the name and address of the non-United States Holder. These forms may be required to be periodically updated. In some circumstances, in lieu of providing an IRS Form W-8BEN or W-8BEN-E, as applicable, the non-United States Holder may provide certain documentary evidence issued by foreign governmental
authorities to prove residence in a foreign country in order to claim treaty benefits.
Special procedures relating to United States withholding taxes are
provided under applicable Treasury Regulations for payments through qualified intermediaries or certain financial institutions that hold customers securities in the ordinary course of their trade or business.
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Non-United States Holders are urged to consult their tax advisers
regarding applicable income tax treaties, which may provide different rules.
Sale of notes
Subject to the discussion of backup withholding and FATCA below, a non-United States Holder generally will not be
subject to United States federal income tax or withholding tax on gain realized on the sale or exchange of a note unless:
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(1)
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the non-United States Holder is an individual who is present in the
United States for 183 days or more in the taxable year of the sale or exchange and certain other conditions are met; or
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(2)
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the gain is effectively connected with the conduct of a trade or business of the
non-United States Holder in the United States and, if an applicable tax treaty requires, such gain is attributable to a United States permanent establishment maintained by such holder.
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A non-United States Holder described in clause (2) above generally will be subject to tax with respect to such
gain in the same manner as a United States Holder. In some circumstances, a non-United States Holder which is a corporation will be subject to an additional branch profits tax at a 30% rate or, if
applicable, a lower treaty rate on such income. If a non-United States Holder is an individual described in clause (1) above, such holder will be subject to a flat 30% tax on the gain derived from the
sale or exchange, which may be offset by United States source capital losses, even though such holder is not considered a resident of the United States. Amounts attributable to accrued but unpaid stated interest realized on the sale or exchange of a
note will be subject to the rules applicable to interest, as described in Interest above.
Information reporting and backup
withholding
Certain United States Holders may be subject to information reporting requirements on payments of principal and interest on a note and
payments of the proceeds of the sale of a note, and backup withholding tax at the applicable rate may apply to such payments if the United States Holder:
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(1)
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fails to furnish an accurate taxpayer identification number, or TIN, or certification of exempt status to the
payor in the manner required;
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(2)
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is notified by the IRS that it has failed to properly report payments of interest or dividends; or
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(3)
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under certain circumstances, fails to certify, under penalties of perjury, that it has furnished a correct TIN
and that it has not been notified by the IRS that it is subject to backup withholding.
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A
non-United States Holder generally is not subject to backup withholding on payment of interest if it certifies as to its status as a non-United States Holder under
penalties of perjury in the manner described in Non-United States HoldersInterest above or otherwise establishes an exemption, provided that the applicable withholding agent does not
have actual knowledge or reason to know that the non-United States Holder is a United States person or that the conditions of any other exemptions are not, in fact, satisfied. However, information reporting
requirements will apply to payments of interest to non-United States Holders. Copies of these information returns also may be made available under the provisions of a specific treaty or agreement to the tax
authorities of the country in which the non-United States Holder resides.
The payment of the proceeds from the
disposition of notes to or through the United States office of any broker, United States or foreign, will be subject to information reporting and possible backup withholding unless the owner certifies as to its
non-United States Holder status under penalties of perjury in the manner described in Non-United States HoldersInterest above or otherwise
establishes an exemption, and the broker does not have actual knowledge or reason to know that the non-United States Holder is a United States person or that the conditions of any other exemption are not, in
fact, satisfied.
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The payment of the proceeds from the disposition of a note to or through a
non-United States office of a non-United States broker that is not a United States related person generally will not be subject to information reporting or
backup withholding. For this purpose, a United States related person is:
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(1)
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a controlled foreign corporation for United States federal income tax purposes;
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(2)
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a foreign person 50% or more of whose gross income from all sources for the three-year period ending with the
close of its taxable year preceding the payment, or for such part of the period that the broker has been in existence, is derived from activities that are effectively connected with the conduct of a United States trade or business; or
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(3)
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a foreign partnership that is either engaged in the conduct of a trade or business in the United States or of
which more than 50% of its income or capital interests are held by United States persons.
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In the case of the payment of proceeds from
the disposition of notes to or through a non-United States office of a broker that is either a United States person or a United States related person, the payment may be subject to information reporting unless
the broker has documentary evidence in its files that the owner is a non-United States Holder and the broker has no knowledge or reason to know to the contrary. Backup withholding will not apply to payments
made through foreign offices of a broker that is a United States person or a United States related person (absent actual knowledge that the payee is a United States person).
Any amounts withheld under the backup withholding rules from a payment to a holder will be allowed as a refund or a credit against such holders United
States federal income tax liability, provided that the requisite procedures are followed.
Holders of notes are urged to consult their tax advisers
regarding their qualification for exemption from backup withholding and the procedure for obtaining such an exemption, if applicable.
Foreign
Account Tax Compliance Act
Under the Foreign Account Tax Compliance Act (FATCA), a 30% withholding tax may be imposed on payments of
interest on, and, subject to the proposed Treasury Regulations discussed below, payments of gross proceeds from the sale or other disposition of, notes made to a foreign financial institution or a
non-financial foreign entity (in each case, as defined in the Code), regardless of whether such foreign institution or entity is a beneficial owner or an intermediary, unless:
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(1)
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in the case of a foreign financial institution, the foreign financial institution undertakes certain diligence
and reporting obligations;
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(2)
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in the case of a non-financial foreign entity, the non-financial foreign entity either certifies it does not have any substantial United States owners (as defined in the Code) or furnishes identifying information regarding each substantial United States
owner and satisfies certain other requirements; or
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(3)
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the foreign financial institution or non-financial foreign entity
otherwise qualifies for an exemption from these rules.
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If the payee is a foreign financial institution and is subject to the diligence
and reporting requirements described in clause (1) above, it must enter into an agreement with the U.S. Department of the Treasury requiring, among other matters, that it undertake to identify accounts held by certain United States
persons or United States owned foreign entities (in each case, as defined in the Code), annually report certain information about such accounts and withhold 30% on certain payments to
non-compliant foreign financial institutions and certain other account holders. Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing
FATCA may be subject to different rules.
While withholding under FATCA generally would have applied to payments of gross proceeds from the sale or other
disposition of a note on or after January 1, 2019, proposed Treasury Regulations eliminate FATCA
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withholding on payments of gross proceeds entirely. Taxpayers generally may rely on these proposed Treasury Regulations until final Treasury Regulations are issued. If an interest payment is
subject both to withholding under FATCA and to the withholding tax discussed above under Non-United States HoldersInterest, the withholding under FATCA may be credited against, and
therefore reduce, such other withholding tax. Prospective investors should consult their tax advisers regarding the consequences and application of the rules under FATCA.
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Underwriting (conflicts of interest)
Subject to the terms and conditions contained in an underwriting agreement, dated as of the date of this prospectus supplement, between us and BofA
Securities, Inc., Citigroup Global Markets Inc. and J.P. Morgan Securities LLC, as representatives of the underwriters, we have agreed to sell to each underwriter, and each underwriter has severally agreed to purchase from us, the principal amount
of notes that appears opposite its name in the table below:
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Underwriter
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Principal Amount of
20 Notes
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Principal Amount of
20 Notes
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BofA Securities, Inc.
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$
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$
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Citigroup Global Markets Inc.
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J.P. Morgan Securities LLC
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HSBC Securities (USA) Inc.
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Mizuho Securities USA LLC
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Total
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$
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$
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The underwriters are offering the notes subject to their acceptance of the notes from us and subject to prior sale. The
underwriting agreement provides that the obligations of the several underwriters to pay for and accept delivery of the notes offered by this prospectus supplement are subject to certain conditions. The underwriters are obligated to take and pay for
all of the notes offered by this prospectus supplement if any such notes are taken.
The underwriters initially propose to offer the notes to the public
at the applicable public offering price that appears on the cover page of this prospectus supplement. In addition, the underwriters initially propose to offer the notes to certain dealers at prices that represent a concession not in excess
of % and % of the principal amount of the 20 notes and the 20 notes, respectively. Any
underwriter may allow, and any such dealer may reallow, a concession not in excess of % and % of the principal amount of the
20 notes and the 20 notes, respectively, to certain other dealers. After the initial offering of the notes, the underwriters may from time to time vary the offering prices and other selling
terms. The underwriters may offer and sell notes through certain of their affiliates.
The following table shows the underwriting discounts that we
will pay to the underwriters in connection with the offering of the notes:
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Paid by us
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Per 20 note
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|
|
|
%
|
Per 20 note
|
|
|
|
%
|
Total
|
|
$
|
|
|
Expenses associated with this offering to be paid by us, other than underwriting discounts, are estimated to be approximately
$ .
We have also agreed to indemnify the underwriters against certain liabilities,
including liabilities under the Securities Act, or to contribute to payments which the underwriters may be required to make in respect of any such liabilities.
The notes are new issues of securities for which there is currently no established trading market. We do not intend to apply for the notes to be listed
on any securities exchange or to arrange for the notes to be quoted on any automated quotation system. The underwriters have advised us that they intend to make a market in each series of the notes, but they are not obligated to do so. The
underwriters may discontinue any market making in any series of the notes at any time at their sole discretion. Accordingly, we cannot assure you that a liquid trading market will develop for any series of the notes, that you will be able to
sell your notes at a particular time or that the prices you receive when you sell will be favorable.
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In connection with the offering of the notes, the underwriters may engage in transactions that stabilize,
maintain or otherwise affect the prices of the notes. Specifically, the underwriters may over-allot in connection with the offering of the notes, creating syndicate short positions. In addition, the underwriters may bid for and purchase
notes in the open market to cover syndicate short positions or to stabilize the prices of the notes. Finally, the underwriting syndicate may reclaim selling concessions allowed for distributing the notes in the offering of the notes, if the
syndicate repurchases previously distributed notes in syndicate covering transactions, stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market prices of the notes above independent market
levels. The underwriters are not required to engage in any of these activities, and may end any of them at any time.
Relationships
From time to time in the ordinary course of their respective businesses, certain of the underwriters and their affiliates have engaged in and may in the
future engage in commercial banking, derivatives and/or financial advisory, investment banking and other commercial transactions and services with us and our affiliates for which they have received or will receive customary fees and
commissions. In addition, in the ordinary course of their respective businesses, the underwriters and their affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative
securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers. Such investments and securities activities may involve securities and/or instruments of ours or our affiliates. If
any of the underwriters or their affiliates has a lending relationship with us, certain of those underwriters or their affiliates routinely hedge, and certain other of those underwriters or their affiliates may hedge, their credit exposure to us
consistent with their customary risk management policies. Typically, such underwriters and their affiliates would hedge such exposure by entering into transactions which consist of either the purchase of credit default swaps or the creation of
short positions in our securities, including potentially the notes offered hereby. Any such credit default swaps or short positions could adversely affect future trading prices of the notes offered hereby. The underwriters and their
affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or financial instruments and may hold, or recommend to clients that they acquire, long and/or short positions in
such securities and instruments.
Certain affiliates of BofA Securities, Inc., Citigroup Global Markets Inc., J.P. Morgan Securities LLC or the other
underwriters are parties to and/or lenders under certain of our credit facilities, including our senior, unsecured $1 billion revolving credit facility. Our credit facilities were negotiated on an arms-length basis and contain customary terms
pursuant to which the lenders receive customary fees.
Conflicts of interest
As a result of our intended use of the net proceeds from this offering to repay all or a portion of the outstanding indebtedness under our revolving credit
facility and our 4.625% senior notes due 2020, certain of the underwriters and/or their affiliates may receive more than 5% of the net proceeds of this offering, not including underwriting compensation, thus creating a conflict of interest within
the meaning of FINRA Rule 5121. Accordingly, this offering is being made in compliance with the requirements of FINRA Rule 5121. The appointment of a qualified independent underwriter is not necessary in connection with this offering as
the notes are investment grade rated securities.
Extended settlement
Delivery of the notes is expected to be made against payment for the notes on May , 2020, which will be the third business day
following the date of this prospectus supplement (such settlement cycle being referred to as T+3). Pursuant to Rule 15c6-1 under the Exchange Act, trades in the secondary market generally are
required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes prior to the delivery of the notes hereunder will be required, by virtue of
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the fact that the notes initially will settle T+3, to specify alternate settlement arrangements at the time of any such trade to prevent a failed settlement and should consult their own advisers.
Selling restrictions
European Economic Area
and the United Kingdom
The notes are not intended to be offered, sold or otherwise made available to, and should not be offered, sold or
otherwise made available to, any retail investor in the European Economic Area (EEA) or in the United Kingdom. For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client as defined in point
(11) of Article 4(1) of Directive 2014/65/EU (as amended, MiFID II); (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended, the Insurance Distribution Directive), where that customer would
not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the Prospectus Regulation). Consequently no
key information document required by Regulation (EU) No 1286/2014 (as amended, the PRIIPs Regulation) for offering or selling the notes or otherwise making them available to retail investors in the EEA or in the United Kingdom has been
prepared and therefore offering or selling the notes or otherwise making them available to any retail investor in the EEA or in the United Kingdom may be unlawful under the PRIIPs Regulation.
This prospectus supplement and the accompanying prospectus have been prepared on the basis that any offer of notes in any member state of the EEA or in the
United Kingdom will be made pursuant to an exemption under the Prospectus Regulation from the requirement to publish a prospectus for offers of notes. Neither this prospectus supplement nor the accompanying prospectus is a prospectus for the
purposes of the Prospectus Regulation.
United Kingdom
This prospectus supplement, the accompanying prospectus and any other material in relation to the notes described herein are being distributed only to, and
are directed only at, persons outside the United Kingdom or, if in the United Kingdom, persons who are qualified investors (as defined in the Prospectus Regulation) who are (i) persons having professional experience in matters
relating to investments falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the Order), or (ii) high net worth entities falling within Article 49(2)(a) to (d) of the
Order, or (iii) persons to whom it would otherwise be lawful to distribute them, all such persons together being referred to as Relevant Persons. The notes are only available to, and any investment activity or invitation, offer or
agreement to subscribe for, purchase or otherwise acquire such notes will be engaged in only with, Relevant Persons. This prospectus supplement, the accompanying prospectus and their contents should not be distributed, published or reproduced (in
whole or in part) or disclosed by any recipients to any other person in the United Kingdom. Any person in the United Kingdom that is not a Relevant Person should not act or rely on this prospectus supplement or the accompanying prospectus or any of
their contents. The notes are not being offered to the public in the United Kingdom.
Canada
The notes may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument
45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103
Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the notes must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities
laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this
prospectus supplement and the accompanying prospectus (including any amendment
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thereto) contain a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the
purchasers province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchasers province or territory for particulars of these rights or consult with a legal adviser.
Pursuant to section 3A.3 of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this
offering.
Switzerland
This document is not
intended to constitute an offer or solicitation to purchase or invest in the notes described herein. The notes may not be publicly offered, sold or advertised, directly or indirectly, in, into or from Switzerland and will not be listed on the SIX
Swiss Exchange or on any other exchange or regulated trading facility in Switzerland. Neither this prospectus supplement nor any other offering or marketing material relating to the notes constitutes a prospectus as such term is understood pursuant
to article 652a or article 1156 of the Swiss Code of Obligations, and neither this prospectus supplement nor any other offering or marketing material relating to the notes may be publicly distributed or otherwise made publicly available in
Switzerland.
Neither this prospectus supplement and the accompanying prospectus nor any other offering or marketing material relating to the offering,
the Company or the notes have been or will be filed with or approved by any Swiss regulatory authority. In particular, this prospectus supplement and the accompanying prospectus will not be filed with, and the offer of the notes will not be
supervised by, the Swiss Financial Market Supervisory Authority, and the offer of the notes has not been and will not be authorized under the Swiss Federal Act on Collective Investment Schemes (CISA). The investor protection afforded to
acquirers of interests in collective investment schemes under the CISA does not extend to acquirers of the notes.
Hong Kong
The notes may not be offered or sold by means of any document other than (i) to professional investors as defined in the Securities and
Futures Ordinance (Cap.571, Laws of Hong Kong) (the SFO) and any rules made under that Ordinance, or (ii) in other circumstances which do not result in the document being a prospectus as defined in the Companies (Winding
Up and Miscellaneous Provisions) Ordinance (Cap.32, Laws of Hong Kong) or which do not constitute an offer to the public within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32, Laws of Hong Kong). No
advertisement, invitation or document relating to the notes may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely
to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to the notes which are or are intended to be disposed of only to persons outside Hong Kong or only to
professional investors as defined in the SFO and any rules made under that Ordinance.
Taiwan
The notes have not been and will not be registered with the Financial Supervisory Commission of Taiwan pursuant to relevant securities laws and regulations
and may not be sold, issued or offered within Taiwan through a public offering or in circumstances which constitute an offer within the meaning of the Securities and Exchange Act of Taiwan that requires a registration or approval of the Financial
Supervisory Commission of Taiwan. No person or entity in Taiwan has been authorized to offer, sell, give advice regarding or otherwise intermediate the offering and sale of the notes in Taiwan.
Japan
The notes have not been and will not be
registered pursuant to Article 4, Paragraph 1 of the Financial Instruments and Exchange Act. Accordingly, none of the notes nor any interest therein may be offered or sold, directly or
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indirectly, in Japan or to, or for the account or benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other
entity organized under the laws of Japan), or to, or for the account or benefit of, others for re-offering or resale, directly or indirectly, in Japan or to, or for the account or benefit of, any resident of
Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Act and any other applicable laws, regulations and ministerial guidelines of Japan in effect at
the relevant time.
Singapore
This
prospectus supplement and the accompanying prospectus have not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, the notes have not been offered or sold or caused to be made the subject of an invitation for
subscription or purchase, and this prospectus supplement and the accompanying prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the notes have not been and will not be
circulated or distributed, whether directly or indirectly, to any person in Singapore other than (i) to an institutional investor (as defined in Section 4A of the Securities and Futures Act (the SFA)) pursuant to
Section 274 of the SFA, (ii) to a relevant person (as defined in Section 275(2) of the SFA) pursuant to Section 275(1) of the SFA or to any person pursuant to Section 275(1A) of the SFA and in accordance with the conditions
specified in Section 275 of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
Where the notes are subscribed or purchased under Section 275 of the SFA by a relevant person which is: (i) a corporation (which is not an
accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (ii) a trust
(where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor, securities or securities-based derivatives contracts (each term as defined
in the SFA) of that corporation or the beneficiaries rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has acquired the notes pursuant to an offer under
Section 275 of the SFA except: (a) to an institutional investor or to a relevant person defined in Section 275(2) of the SFA or to any person arising from an offer referred to in Section 275(1A) or Section 276(4)(i)(B) of
the SFA; (b) where no consideration is or will be given for the transfer; (c) where the transfer is by operation of law; (d) as specified in Section 276(7) of the SFA; or (e) as specified in Regulation 37A of the Securities
and Futures (Offers of Investments) (Securities and Securities-based Derivatives Contracts) Regulations 2018 of Singapore.
Singapore Securities and
Futures Act Product ClassificationSolely for the purposes of its obligations pursuant to Sections 309B(1)(a) and 309B(1)(c) of the SFA, the Company has determined, and hereby notifies all relevant persons (as defined in Section 309A of
the Securities and Futures Act), that the notes are prescribed capital markets products (as defined in the Securities and Futures (Capital Markets Products) Regulations 2018) and Excluded Investment Products (as defined in MAS Notice SFA
04-N12: Notice on the Sale of Investment Products and MAS Notice FAA-N16: Notice on Recommendations on Investment Products).
Dubai International Financial Centre
This
document relates to an Exempt Offer in accordance with the Markets Rules 2012 of the Dubai Financial Services Authority (DFSA). This document is intended for distribution only to persons of a type specified in the Markets Rules 2012 of
the DFSA. It must not be delivered to, or relied on by, any other person. The DFSA has no responsibility for reviewing or verifying any documents in connection with Exempt Offers. The DFSA has not approved this prospectus supplement nor taken steps
to verify the information set forth herein and has no responsibility for this document. The securities to which this document relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the securities offered
should conduct their own due diligence on the securities. If you do not understand the contents of this document, you should consult an authorized financial adviser.
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In relation to its use in the DIFC, this document is strictly private and confidential and is being distributed
to a limited number of investors and must not be provided to any person other than the original recipient, and may not be reproduced or used for any other purpose. The interests in the securities may not be offered or sold directly or indirectly to
the public in the DIFC.
United Arab Emirates
The notes have not been, and are not being, publicly offered, sold, promoted or advertised in the United Arab Emirates (including the Dubai International
Financial Centre) other than in compliance with the laws of the United Arab Emirates (and the Dubai International Financial Centre) governing the issue, offering and sale of securities. Further, this prospectus supplement and the accompanying
prospectus do not constitute a public offer of securities in the United Arab Emirates (including the Dubai International Financial Centre) and are not intended to be a public offer. This prospectus supplement and the accompanying prospectus have not
been approved by or filed with the Central Bank of the United Arab Emirates, the Securities and Commodities Authority or the Dubai Financial Services Authority.
Australia
No placement document, prospectus,
product disclosure statement or other disclosure document (including as defined in the Corporations Act 2001 (Cth) (Corporations Act)) has been or will be lodged with the Australian Securities and Investments Commission
(ASIC) or any other governmental agency, in relation to the offering. This prospectus supplement does not constitute a prospectus, product disclosure statement or other disclosure document for the purposes of Corporations Act, and does
not purport to include the information required for a prospectus, product disclosure statement or other disclosure document under the Corporations Act. No action has been taken which would permit an offering of the notes in circumstances that would
require disclosure under Part 6D.2 or 7.9 of the Corporations Act.
The notes may not be offered for sale, nor may application for the sale or
purchase or any notes be invited in Australia (including an offer or invitation which is received by a person in Australia) and neither this prospectus supplement nor any other offering material or advertisement relating to the notes may be
distributed or published in Australia unless, in each case:
|
(i)
|
the aggregate consideration payable on acceptance of the offer or invitation by each offeree or invitee is at
least A$500,000 (or its equivalent in another currency, in either case, disregarding moneys lent by the person offering the notes or making the invitation or its associates) or the offer or invitation otherwise does not require disclosure to
investors in accordance with Part 6D.2 or 7.9 of the Corporations Act;
|
|
(ii)
|
the offer, invitation or distribution complied with the conditions of the Australian financial services license
of the person making the offer, invitation or distribution or an applicable exemption from the requirement to hold such license;
|
|
(iii)
|
the offer, invitation or distribution complies with all applicable Australian laws, regulations and directives
(including, without limitation, the licensing requirements set out in Chapter 7 of the Corporations Act);
|
|
(iv)
|
the offer or invitation does not constitute an offer or invitation to a person in Australia who is a
retail client as defined for the purposes of Section 761G of the Corporations Act; and
|
|
(v)
|
such action does not require any document to be lodged with ASIC or the Australian Securities Exchange.
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Legal matters
The validity of the notes will be passed upon for us by Hogan Lovells US
LLP, Washington, D.C. The underwriters are being represented in connection with this offering by Davis Polk & Wardwell LLP, New York, New York.