As filed with the Securities and Exchange Commission on March 2, 2021April 26, 2024
Registration No. 333-253138333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MICROSOFT CORPORATIONMicrosoft Corporation
(Exact name of registrant issuer as specified in its charter)
Washington | 7372 | 91-1144442 | ||
(State or Other Jurisdiction of Incorporation or Organization) | (Primary Standard Industrial Classification Code Number) | (IRS Employer
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One Microsoft Way
Redmond, Washington 98052-6399
(425) 882-8080
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Keith R. Dolliver, Esq.
Deputy General Counsel Corporate, External, and Legal Affairs
and AssistantCorporate Secretary
Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052-6399
(425) 882-8080
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copieswith a copy to:
William B. Brentani, Esq.
| Corey R. Chivers, Esq.
Fax: (212) 310-8007 |
Approximate date of commencement of the proposed sale of the securities to the public:The offering of the securities will commence promptly following the filing of the Registration Statement. No tendered securities will be accepted for exchange until As soon as practicable after this Registration Statement has been declaredregistration statement becomes effective.
If the securities being registered on this Formform are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this Formform is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Formform is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrantRegistrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “non-accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | ☒ | Accelerated filer | ☐ | |||||||
Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||||||
Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. Act: ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross Border(Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross Border Third Party(Cross-Border Third-Party Tender Offer) ☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Unit(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee(3) | ||||
New Notes due 2052 | $6,250,000,000 | 100% | $6,250,000,000 | $681,875 | ||||
New Notes due 2062 | $2,000,000,000 | 100% | $2,000,000,000 | $218,200 | ||||
Total | $8,250,000,000 | $900,075 | ||||||
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The Registrant hereby amends this Registration Statementregistration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment whichthat specifically states that this Registration Statementregistration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 as amended, or until the Registration Statementthis registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may change.be changed. We may not complete the exchange offers and issuesell these securities or accept any offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
PRELIMINARY - SUBJECT TO CHANGE,COMPLETION, DATED March 2, 2021APRIL 26, 2024
PROSPECTUS
MICROSOFT CORPORATION
OFFERS TO EXCHANGE THE NOTES SET FORTH BELOW
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
FOR
ANY AND ALL OUTSTANDING RESTRICTED NOTES
SET FORTH OPPOSITE THE CORRESPONDING REGISTERED NOTES
REGISTERED NOTES | RESTRICTED NOTES | |
$762,661,000 3.400% Notes due 2026 (CUSIP No. 594918CN2) | $762,661,000 3.400% Notes due 2026 (CUSIP Nos. 594918CG7 and U59340AH9) | |
$354,793,000 3.400% Notes due 2027 (CUSIP No. 594918CQ5) | $354,793,000 3.400% Notes due 2027 (CUSIP Nos. 594918CH5 and U59340AJ5) | |
$448,585,000 1.350% Notes due 2030 (CUSIP No. 594918CS1) | $448,585,000 1.350% Notes due 2030 (CUSIP Nos. 594918CJ1 and U59340AK2) | |
$394,262,000 4.500% Notes due 2047 (CUSIP No. 594918CU6) | $394,262,000 4.500% Notes due 2047 (CUSIP Nos. 594918CK8 and U59340AL0) | |
$1,440,382,000 2.500% Notes due 2050 (CUSIP No. 594918CW2) | $1,440,382,000 2.500% Notes due 2050 (CUSIP Nos. 594918CL6 and U59340AM8) |
Principal Terms of the Exchange Offers
These are offers (the “exchange offers”) by Microsoft Corporation, a Washington corporation (“Microsoft,” the “Company,” “we,” “us,” “our,” the “Issuer” or the “Registrant”), to exchange Existingall outstanding unregistered Restricted Notes (as defined below) for an equal principal amount of the respective series of the Company’s 3.400% Notes due 2026 (the “Registered 2026 Notes”), 3.400% Notes due 2027 (the “Registered 2027 Notes”), 1.350% Notes due 2030 (the “Registered 2030 Notes”), 4.500% Notes due 2047 (the “Registered 2047 Notes”) and a cash payment (as described below) for up to $6,250,000,000 in Aggregate Principal Amount2.500% Notes due 2050 (the “Registered 2050 Notes”) (the Registered 2026 Notes, the Registered 2027 Notes, the Registered 2030 Notes, the Registered 2047 Notes and the Registered 2050 Notes, collectively, the “Registered Notes”), the offers of New 2052 Notes (as defined below) and up to $2,000,000,000 in Aggregate Principal Amountwhich have been registered under the Securities Act of New 2062 Notes (as defined below) and cash payment (as described below),1933, as applicable.amended (the “Securities Act”).
The Exchange Offers (as defined below) with respectCompany issued the unregistered 3.400% Notes due 2026 (CUSIP Nos. 594918CG7 and U59340AH9) (the “Restricted 2026 Notes”), 3.400% Notes due 2027 (CUSIP Nos. 594918CH5 and U59340AJ5) (the “Restricted 2027 Notes”), 1.350% Notes due 2030 (CUSIP Nos. 594918CJ1 and U59340AK2) (the “Restricted 2030 Notes”), 4.500% Notes due 2047 (CUSIP Nos. 594918CK8 and U59340AL0) (the “Restricted 2047 Notes”) and 2.500% Notes due 2050 (CUSIP Nos. 594918CL6 and U59340AM8) (the “Restricted 2050 Notes”) (the Restricted 2026 Notes, the Restricted 2027 Notes, the Restricted 2030 Notes, the Restricted 2047 Notes and the Restricted 2050 Notes, collectively, the “Restricted Notes”) on November 6, 2023 and November 16, 2023, in private offers pursuant to which such Restricted Notes were exchanged for notes of the Existing NotesCompany’s subsidiary, Activision Blizzard, Inc. (“Activision Blizzard”).
Each of the exchange offers will expire at 11:59 p.m., New York City time, on March 15, 2021, unless extended or earlier terminated by us (such date and time, as the same may be extended or earlier terminated, the “Expiration Time”). In order to be eligible to receive the Early Exchange Premium (as defined below), holders of Existing Notes must validly tender their Existing Notes at or prior to 5:00 p.m., New York City time, on March 1, 2021 (such date and time,, 2024, unless the “Early Exchange Time”). TendersCompany extends one or more offers. You may withdraw tenders of ExistingRestricted Notes may be validly withdrawn at any time at or prior to 11:59 p.m., New York City time, on March 15, 2021, unless extended by us, but will thereafter be irrevocable except in the limited circumstances where additional withdrawal rights are required by law.
Upon the terms and subject to the conditions set forth in this prospectus, Microsoft Corporation, a Washington corporation (“Microsoft” or the “Company”), is offering to exchange (the “Pool 1 Offer”) the fourteen series of notes described in the below table (collectively, the “Pool 1 Notes”) for up to $6,250,000,000 aggregate principal amount (the “New 2052 Notes Issue Cap”) of a new series of Microsoft’s 2.921% notes to be due March 17, 2052 (the “New 2052 Notes”) and a cash payment, as provided herein. The aggregate principal amount of Pool 1 Notes of each series that are accepted for exchange will be based on the order of acceptance priority for such series as set forth in the table below, subject to the New 2052 Notes Issue Cap. See Annex B to this prospectus for the final pricing terms with respect to the Pool 1 Offer.
CUSIP | Title of | Principal Amount Outstanding (MM) | Acceptance Priority Level | Reference UST Security(1) | Bloomberg Reference Page | Fixed Spread (basis points) | Cash Payment Percent of Premium(2) | Early Exchange Premium(3)(4) | ||||||||||||||||||||||
Pool 1 Notes | ||||||||||||||||||||||||||||||
594918AX2 | 4.875% Notes due 2043 | $ | 174.572 | 1 | 30-year | FIT 1 | 45 | 100 | % | $ | 30 | |||||||||||||||||||
594918BL7 | 4.450% Notes due 2045 | $ | 1,288.337 | 2 | 30-year | FIT 1 | 50 | 100 | % | $ | 30 | |||||||||||||||||||
594918CA0 | 4.250% Notes due 2047 | $ | 1,584.630 | 3 | 30-year | FIT 1 | 55 | 100 | % | $ | 30 | |||||||||||||||||||
594918AM6 | 5.300% Notes due 2041 | $ | 770.339 | 4 | 30-year | FIT 1 | 30 | 100 | % | $ | 30 | |||||||||||||||||||
594918AD6 | 5.200% Notes due 2039 | $ | 558.545 | 5 | 30-year | FIT 1 | 20 | 100 | % | $ | 30 | |||||||||||||||||||
594918AJ3 | 4.500% Notes due 2040 | $ | 571.171 | 6 | 30-year | FIT 1 | 25 | 100 | % | $ | 30 | |||||||||||||||||||
594918BT0 | 3.700% Notes due 2046 | $ | 4,500.000 | 7 | 30-year | FIT 1 | 52 | 100 | % | $ | 30 | |||||||||||||||||||
594918AU8 | 3.750% Notes due 2043 | $ | 244.015 | 8 | 30-year | FIT 1 | 45 | 100 | % | $ | 30 |
CUSIP | Title of | Principal Amount Outstanding (MM) | Acceptance Priority Level | Reference UST Security(1) | Bloomberg Reference Page | Fixed Spread (basis points) | Cash Payment Percent of Premium(2) | Early Exchange Premium(3)(4) | ||||||||||||||||||||||
594918BD5 | 3.750% Notes due 2045 | $ | 640.567 | 9 | 30-year | FIT 1 | 45 | 100 | % | $ | 30 | |||||||||||||||||||
594918AR5 | 3.500% Notes due 2042 | $ | 900.000 | 10 | 30-year | FIT 1 | 35 | 100 | % | $ | 30 | |||||||||||||||||||
594918BZ6 | 4.100% Notes due 2037 | $ | 1,916.467 | 11 | 30-year | FIT 1 | 5 | 100 | % | $ | 30 | |||||||||||||||||||
594918BK9 | 4.200% Notes due 2035 | $ | 1,000.000 | 12 | 30-year | FIT 1 | (10 | ) | 100 | % | $ | 30 | ||||||||||||||||||
594918BS2 | 3.450% Notes due 2036 | $ | 2,250.000 | 13 | 30-year | FIT 1 | (7 | ) | 100 | % | $ | 30 | ||||||||||||||||||
594918BC7 | 3.500% Notes due 2035 | $ | 1,500.000 | 14 | 30-year | FIT 1 | (15 | ) | 100 | % | $ | 30 |
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Upon the terms and subject to the conditions set forth in this prospectus, the Company is also offering to exchange (the “Pool 2 Offer” and, together with the Pool 1 Offer, the “Exchange Offers”) the four series of notes described in the below table (collectively, the “Pool 2 Notes” and, together with the Pool 1 Notes, the “Existing Notes”) for up to $2,000,000,000 (increased from $1,250,000,000) aggregate principal amount (the “New 2062 Notes Issue Cap” and, together with the New 2052 Notes Issue Cap, the “New Issue Cap”) of a new series of Microsoft’s 3.041% notes to be due March 17, 2062 (the “New 2062 Notes” and, together with the New 2052 Notes, the “New Notes”) and a cash payment, as provided herein. The aggregate principal amount of Pool 2 Notes of each series that are accepted for exchange will be based on the order of acceptance priority for such series as set forth in the below table, subject to the New 2062 Notes Issue Cap. See Annex B to this prospectus for the final pricing terms with respect to the Pool 2 Offer.
CUSIP | Title of | Principal Amount Outstanding (MM) | Acceptance Priority Level | Reference UST Security(1) | Bloomberg Reference Page | Fixed Spread (basis points) | Cash Payment Percent of Premium(2) | Early Exchange Premium(3)(4) | ||||||||||||||||||||||
Pool 2 Notes | ||||||||||||||||||||||||||||||
594918BU7 | 3.950% Notes due 2056 | $ | 1,954.510 | 1 | 30-year | FIT 1 | 67 | 100% | $ | 30 | ||||||||||||||||||||
594918BM5 | 4.750% Notes due 2055 | $ | 326.735 | 2 | 30-year | FIT 1 | 67 | 96% | $ | 30 | ||||||||||||||||||||
594918CB8 | 4.500% Notes due 2057 | $ | 883.777 | 3 | 30-year | FIT 1 | 67 | 100% | $ | 30 | ||||||||||||||||||||
594918BE3 | 4.000% Notes due 2055 | $ | 793.850 | 4 | 30-year | FIT 1 | 67 | 100% | $ | 30 |
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Set forth below is a table summarizing the terms of the New Notes offered in the Exchange Offers:
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The Exchange Offers will expire at 11:59 p.m., New York City time, on March 15, 2021, unless extended by us (such date and time, as they may be extended, the “Expiration Time”). To be eligible to receive the Early Exchange Premium, holders must validly tender their Existing Notes at or prior to 5:00 p.m., New York City time, on March 1, 2021 (such date and time, the “Early Exchange Time”). Tenders of Existing Notes in the Exchange Offers may be validly withdrawn at any time at or prior to the Expiration Time, but will thereafter be irrevocable, except in certain limited circumstances where additional withdrawal rightsexpiration of the relevant exchange offer. The exchange offers are required by law.
The consummation of each Exchange Offer isnot subject to and conditional upon, the satisfactionany condition other than that they will not violate applicable law or where permitted, the waiverinterpretations of the conditions discussed under “Descriptionstaff of the Exchange Offers—Conditions to the Exchange Offers,” including, among other things, the registration statement on Form S-4 of which this prospectus forms a part having been declared
effective by the Securities and Exchange Commission (the “SEC”“SEC”) on or priorand that no proceedings with respect to the Expiration Time and remaining effectiveexchange offers have been instituted or threatened in any court or by any governmental agency. The exchange offers are not conditioned upon any minimum aggregate principal amount of Restricted Notes being tendered for exchange. None of the exchange offers is conditioned on the Settlement Dateconsummation of any of the other exchange offers.
Principal Terms of the Registered Notes
The terms of the Registered Notes to be issued in the exchange offers are substantially identical in all material respects to the terms of the Restricted Notes, except that the Registered Notes will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with the Registration Rights Agreement (as defined herein). Each series of Registered Notes and the corresponding series of Restricted Notes that are not exchanged in this prospectus). We may, at our option waivethe applicable exchange offer will be treated as a single series of debt securities under the Indenture (as defined below), pursuant to which each series of Restricted Notes were, and the corresponding series of Registered Notes will be, issued, along with any such conditions at or by the Expiration Time, except the condition that the registration statementadditional notes of which this prospectus forms a part has been declared effective by the SEC on or priorany applicable series issued pursuant to the Expiration TimeIndenture.
The Registered Notes are new securities, and remains effectivethere is currently no established trading market for the Registered Notes. The Company does not intend to list the Registered Notes on any securities exchange or to apply for quotation in any automated dealer quotation system, and, therefore, no active public market is anticipated.
The Registered Notes will be Microsoft’s senior unsecured obligations, will rank equally with Microsoft’s other unsecured and unsubordinated debt from time to time outstanding and will be (1) structurally subordinated to all indebtedness and obligations of Microsoft’s subsidiaries, including the Settlement Date. For information aboutoutstanding senior notes issued by Activision Blizzard that were not exchanged for Restricted Notes in the Activision Blizzard Exchange Offer (as defined below) and any other conditionsindebtedness and liabilities of Microsoft’s subsidiaries and (2) effectively subordinated to our obligationsall existing and future senior indebtedness secured by liens up to complete the Exchange Offers, see “Descriptionextent of the Exchange Offers—Conditions tovalue of the Exchange Offers.”collateral securing such indebtedness.
ForYou should carefully consider the risk factors beginning on page 9 of this prospectus before participating in the exchange offers.
Each broker-dealer that receives Registered Notes for its own account pursuant to the exchange offers will be deemed to acknowledge that it will deliver a discussion of factors you should consider in determining whether to tender your Existing Notesprospectus in connection with any resale of such Registered Notes and by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the Exchange Offers, seemeaning of the information under “Risk Factors” beginning on page 13Securities Act.
This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Registered Notes received in exchange for Restricted Notes that were acquired by such broker-dealer as a result of market-making or other trading activities. The Company has agreed that, for a period of up to 180 days after the expiration date of the applicable exchange offer, if requested by one or more such broker-dealers, the Company will amend or supplement this prospectus and in our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, which are incorporatedorder to expedite or facilitate the disposition of any Registered Notes by reference into this prospectus.any such broker-dealers. See “Plan of Distribution.”
None of Microsoft, the Dealer Managers, the Exchange Agent and Information Agent (each as defined in this prospectus) for the Exchange Offers, or the trustee under the Indenture (as defined in this prospectus), or any other person makes any recommendation as to whether you should exchange your Existing Notes in the Exchange Offers.
Neither the SEC, nor any state securities commission or other regulatory agency has approved or disapproved of these securitiesthe Registered Notes or passed upon the accuracyexchange offers or adequacy ofdetermined if this prospectus.prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The Joint Lead Dealer Managers for the Exchange Offers are:
The Senior Co-Dealer Managers for the Exchange Offers are:
The Co-Dealer Managers for the Exchange Offers are:
The date of this prospectus is March 2, 2021., 2024.
The Exchange Offers
As of March 2, 2021, the aggregate principal amounts of Pool 1 Notes and Pool 2 Notes outstanding were $17,898.6 million and $3,958.9 million, respectively. The aggregate principal amount of New Notes to be issued pursuant to the Exchange Offers will be subject to the applicable New Issue Cap (as described below). The principal amount of each series of Existing Notes to be accepted pursuant to the Exchange Offers will be subject to the “acceptance priority level” (in numerical priority order) of such series as set forth in the applicable table on the front cover of this prospectus.
With respect to Existing Notes tendered in an Exchange Offer, and not validly withdrawn prior to the Expiration Time, such Existing Notes of a series having a higher acceptance priority level for such Exchange Offer will be accepted for exchange before any such Existing Notes of a series having a lower acceptance priority level. If acceptance of all validly tendered Existing Notes of a series would not result in us issuing New Notes having an aggregate principal amount in excess of the applicable New Issue Cap, we will accept all validly tendered Existing Notes of such series. If acceptance of all validly tendered Existing Notes of a series would result in us issuing New Notes having an aggregate principal amount in excess of the applicable New Issue Cap, the tendered Existing Notes of such series will be accepted subject to proration as described more fully in this prospectus.
The completion of the Exchange Offers for each series of Existing Notes is subject to, and conditional upon, the satisfaction or waiver of certain conditions, including, among other things, (i) the registration statement on Form S-4 of which this prospectus forms a part having been declared effective by the SEC on or prior to the Expiration Time and remaining effective on the Settlement Date; (ii) the condition that, as of the Pricing Time, the combination of the yield of the New Notes and the Total Exchange Consideration for the applicable series of Existing Notes would result in the New Notes and such Existing Notes not being treated as “substantially different” under FASB Accounting Standards Codification (“ASC”) 470-50 (the “Accounting Treatment Condition”); (iii) the requirement, with respect to the Exchange Offers of New Notes for Existing Notes, that we issue at least (a) $3,000,000,000 aggregate principal amount of New 2052 Notes and (b) $750,000,000 aggregate principal amount of New 2062 Notes; (iv) the Yield Condition (as defined below) (for any applicable series of Existing Notes); and (v) that nothing has occurred or may occur that would or might, in our reasonable judgment, be expected to prohibit, prevent, restrict or delay an Exchange Offer or delay the scheduled Pricing Time or impair us from realizing the anticipated benefits of an Exchange Offer. The Exchange Offer for any particular series of Existing Notes is further subject to the condition that the acceptance of validly tendered series of Existing Notes with a higher acceptance priority level would not result in the issuance of New 2052 Notes or New 2062 Notes in excess of the New 2052 Notes Issue Cap or the New 2062 Notes Issue Cap, as applicable. The Accounting Treatment Condition and the Yield Condition have been satisfied for each series of Existing Notes in the Exchange Offers. We may, at our option, waive any such conditions at or by the Expiration Time, except the condition that the registration statement of which this prospectus forms a part has been declared effective by the SEC on or prior to the Expiration Time and remains effective on the Settlement Date. The “Settlement Date” will promptly follow the Expiration Time and is expected to be March 17, 2021, which is the second business day following the Expiration Time. Tendering holders of Existing Notes must tender Existing Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. New Notes will be issued in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
i
The Yield Condition
Notwithstanding any other provision in this prospectus to the contrary, if, at the Pricing Time, the yield of the 30-year Reference UST Security with respect to any series of Existing Notes (as set forth in the table below) is less than the applicable minimum yield or is greater than the applicable maximum yield with respect to such series of Existing Notes, then, unless this condition is waived by us, we will not accept for exchange, or issue the applicable series of New Notes in exchange for, any Existing Notes of such series tendered in the Exchange Offers (the “Yield Condition”). The Yield Condition has been satisfied for the Exchange Offers.
Title of Security | Reference UST Security | Minimum Yield | Maximum Yield | |||||||
Pool 1 Notes | ||||||||||
4.875% Notes due 2043 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
4.450% Notes due 2045 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
4.250% Notes due 2047 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
5.300% Notes due 2041 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
5.200% Notes due 2039 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
4.500% Notes due 2040 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
3.700% Notes due 2046 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
3.750% Notes due 2043 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
3.750% Notes due 2045 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
3.500% Notes due 2042 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
4.100% Notes due 2037 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
4.200% Notes due 2035 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
3.450% Notes due 2036 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
3.500% Notes due 2035 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
Pool 2 Notes | ||||||||||
3.950% Notes due 2056 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
4.750% Notes due 2055 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
4.500% Notes due 2057 | 1.625% due November 15, 2050 | 1.00% | 2.40% | |||||||
4.000% Notes due 2055 | 1.625% due November 15, 2050 | 1.00% | 2.40% |
Total Exchange Consideration and Exchange Consideration
Upon the terms and subject to the conditions set forth in this prospectus:
If you validly tender Existing Notes prior to the Early Exchange Time and do not validly withdraw such tendered Existing Notes prior to the Expiration Time, and such Existing Notes are accepted by us, you will receive, for each $1,000 principal amount of Existing Notes tendered and accepted, a combination of a principal amount of New Notes and cash with an aggregate value equal to the Total Exchange Consideration as follows:
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If you validly tender Existing Notes after the Early Exchange Time, but prior to the Expiration Time, and such Existing Notes are accepted by us, you will receive, for each $1,000 principal amount of Existing Notes tendered and accepted, a combination of a principal amount of New Notes and cash with an aggregate value equal to the Exchange Consideration as follows:
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In addition to the Total Exchange Consideration or Exchange Consideration, as applicable, holders with Existing Notes that are accepted for exchange will receive a cash payment representing (i) all or a portion of the accrued and unpaid interest to, but not including, the Settlement Date and (ii) amounts due in lieu of any fractional amounts of New Notes, in each case, as described herein. As DTC (as defined below) is the record holder of the Existing Notes, all holders of any Existing Notes will also receive any applicable accrued and unpaid interest on those Existing Notes in accordance with DTC procedures, regardless of the record dates with respect to each series of Existing Notes.
The “Pricing Time” is 10:00 a.m., New York City time, on March 2, 2021.
The “Total Exchange Consideration” (calculated at the Pricing Time and in accordance with the formula set forth in Annex A to this prospectus) for the Existing Notes validly tendered prior to the Early Exchange Time, and not validly withdrawn prior to the Expiration Time, is equal to the discounted value on the Settlement Date of the remaining payments of principal and interest per $1,000 principal amount of the Existing Notes through the applicable maturity date or par call date (as applicable) of the Existing Notes, using a yield (the “Exchange Offer Yield”) equal to the sum of: (i) the bid-side yield on the 30-year Reference UST Security set forth with respect to each series of Existing Notes on the front cover of this prospectus plus (ii) the applicable fixed spread set forth with respect to each series of Existing Notes on the front cover of this prospectus, minus accrued and unpaid interest on such series of Existing Notes to but not including the Settlement Date. For the avoidance of doubt, the $30 per $1,000 Early Exchange Premium is included within the Total Exchange Consideration, as calculated using the Fixed Spread over the 30-year Reference UST Security as described herein, and is not in addition to the Total Exchange Consideration. Further, for the avoidance of doubt, for the Existing Notes that have par call dates, if the applicable Exchange Offer Yield as determined in accordance with this prospectus is less than the contractual annual rate of interest, then such Total Consideration will be calculated based on the par call date; if the applicable Exchange Offer Yield as determined in accordance with this prospectus is higher than or equal to the contractual annual rate of interest, then such Total Consideration will be calculated based on the maturity date.
The “Cash Component” is the portion of the Total Exchange Consideration to be paid to holders in cash and is equal to (i) the applicable Cash Payment Percent of Premium for such series of Existing Notes multiplied by (ii) (a) the applicable Total Exchange Consideration for such series of Existing Notes minus (b) $1,000.
The “Cash Payment Percent of Premium” is the percent (as set forth with respect to each series of Existing Notes on the front cover of this prospectus) of the amount by which the Total Exchange Consideration (as calculated at the Pricing Time and in accordance with the formula set forth in Annex A to this prospectus) exceeds $1,000 per $1,000 principal amount of such Existing Notes.
The “Exchange Consideration” for the Existing Notes validly tendered after the Early Exchange Time but prior to the Expiration Time is equal to the Total Exchange Consideration minus the applicable Early Exchange Premium.
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See “Description of the Exchange Offers—Total Exchange Consideration and Exchange Consideration.”
Early Exchange Premium
To encourage holders of Existing Notes to tender prior to the Early Exchange Time, the Total Exchange Consideration includes an Early Exchange Premium of $30 principal amount of New 2052 Notes or $30 principal amount of New 2062 Notes, as applicable, for each $1,000 principal amount of Existing Notes validly tendered and not validly withdrawn (the “Early Exchange Premium”). Only holders who validly tender their Existing Notes prior to the Early Exchange Time (and who do not validly withdraw prior to the Expiration Time), and whose tenders are accepted for exchange pursuant to the Exchange Offers, will receive the Early Exchange Premium.
Upon the terms and subject to the conditions set forth in this prospectus, holders who validly tender their Existing Notes after the Early Exchange Time but prior to the Expiration Time, and whose tenders are accepted for exchange by us, will receive only the Exchange Consideration, which does not include the Early Exchange Premium.
The “Early Exchange Time” is 5:00 p.m., New York City time, on March 1, 2021. The “Expiration Time” is 11:59 p.m., New York City time, on March 15, 2021, unless extended, in which case the Expiration Time will be such time and date to which the Expiration Time is extended.
See “Description of the Exchange Offers—Total Exchange Consideration and Exchange Consideration—Early Exchange Premium.”
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As usedThe Company has not authorized anyone to provide you with information that is different from the information included or incorporated by reference in this prospectus, unless otherwise stated or the context otherwise requires, “we,” “us,” the “Company,” “our,” or “Microsoft” means Microsoft Corporation and its consolidated subsidiaries. However, in the “Description of the New Notes” and related summary sections of this prospectus, references to “we,” “us” and “our” are to Microsoft Corporation (parent company only) and not to any of its subsidiaries. References herein to “$” areprospectus. The Company cannot take responsibility for, nor provide assurances as to the lawful currencyreliability of, the United States.any different or additional information that others may give you. This document may only be used where it is legal to offer or sell these securities.
No person is authorized in connection with these exchange offers to give any information or to make any representations other than thoserepresentation not contained or incorporated by reference in this prospectus. Weprospectus, and, the Dealer Managers take no responsibility for, and can provide no assurance as to the reliability of, anyif given or made, such other information or representation must not be relied upon as having been authorized by the Company. You should assume that others may give you. the information contained in this prospectus is accurate only as of its date.
This prospectus isdoes not constitute an offer to sell or the solicitation of an offer to buy any securitiesRegistered Notes in any jurisdiction where the offer or saleit is unlawful. Youunlawful to do so.
No person should not assume that the information we have includedconstrue anything in this prospectus as legal, business or tax advice. Each person should consult its own advisors as needed to make its investment decision and to determine whether it is accurate as of any date other thanlegally permitted to participate in the date of this prospectusexchange offers under applicable legal investment or that any information we have incorporated by reference is accurate as of any date other than the date of the document incorporated by reference. Our business, financial condition, results of operations, and prospects may have changed since those dates.similar laws or regulations.
This prospectus is part of a registration statement that weWe have filed with the SEC. Before making any decisionSEC a registration statement on Form S-4 (File No. 333- ) with respect to the Exchange Offers, you should read thisexchange offers and the Registered Notes. This prospectus, which forms part of that registration statement, does not contain all the information included in the registration statement, including its exhibits and any prospectus supplement, together withschedules. For further information about the documents incorporated by referenceCompany, the exchange offers, and the Registered Notes described in this prospectus, you should refer to the registration statement theand its exhibits thereto and the additional information described under the heading “Where You Can Find More Information.”
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference information into this prospectus. This means that we can disclose important information to you by referring you to another document. Any information referred to in this way is considered part of this prospectus from the date we file that document. Any reports filed by us with the SEC after the date of this prospectus will automatically update and, where applicable, supersede any information contained or incorporated by reference in this prospectus.
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We incorporate by reference in this prospectus the documents set forth below that have been previously filed with the SEC; provided, however, that we are not incorporating any documents or information deemed to have been furnished rather than filed in accordance with SEC rules:
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any filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or after the date of this prospectus.
To obtain copies of these filings, see information described under the heading “Where You Can Find More Information” in this prospectus.
Certain statements in this prospectus, any prospectus supplementschedules and the documents incorporated by reference herein. For a listing of documents incorporated by reference herein, see the section titled “Where You Can Find More Information.” Statements the Company makes in this prospectus or in the documents incorporated by reference herein about certain contracts or other documents are not necessarily complete. When the Company makes such statements, the Company refers you to the copies of the contracts or documents that are filed as exhibits to the registration statement because those statements are qualified in all respects by reference to those exhibits. The registration statement incorporates important business and financial information about the Company that is not included or delivered with this document. The registration statement, including its exhibits and schedules, is available at the SEC’s website at http://www.sec.gov. You may also obtain this information without charge upon written or oral request through our Investor Relations Department at:
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Microsoft Corporation, One Microsoft Way, Redmond, Washington 98052-6399, telephone: 800-285-7772 (U.S.) or (425) 706-4400 (international), e-mail: msft@microsoft.com or http://www.microsoft.com/en-us/investor.
In order to ensure timely delivery, you must request the information no later than purely historical information, including, 2024, which is five business days before the expiration of the exchange offers.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes estimates, projections, statements relating to ourMicrosoft’s business plans, objectives, and expected operating results and the assumptions upon which those statements are based,that are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.1934, as amended (the “Exchange Act”). Forward-looking statements may appear throughout this prospectus. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are based on current expectations and assumptions that are subject to risks and uncertainties that may cause actual results to differ materially. Microsoft describes risks and uncertainties that could cause actual results and events to differ materially fromin “Risk Factors” of this prospectus; under the headings “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Quantitative and Qualitative Disclosures about Market Risk” of Microsoft’s Annual Report on Form 10-K for the fiscal year ended June 30, 2023; and under the heading “Risk Factors” included in Part II, Item 1A of our Quarterly Reports on Form 10-Q for the quarters ended September 30, 2023, December 31, 2023, and March 31, 2024. Readers are cautioned not to place undue reliance on forward-looking statements. We undertakestatements, which speak only as of the date they are made. Microsoft undertakes no obligation to update or revise publicly any forward-looking statements, whether because of new information, future events, or otherwise. Actual results could differ materially because of, among others, the following factors:These risks and uncertainties also include, without limitation:
uncertainty as to the trading value of the Registered Notes;
strategic and competitive risks, including risks related to intense competition inacross all of our markets thatfor Microsoft’s products and services, which may lead to lower revenue or operating margins;
increasing focus on cloud-based services presenting executionrisks relating to the evolution of Microsoft’s business, including developing new technologies;
risks relating to cybersecurity, data privacy and competitiveplatform abuse;
operational and infrastructure risks;
significant investments in productslegal, regulatory and services that may not achieve expected returns;
acquisitions, joint ventures, and strategic alliances that may have an adverse effect on our business;
impairment of goodwill or amortizable intangible assets causing a significant charge to earnings;
cyberattacks and security vulnerabilities that could lead to reduced revenue, increased costs, liability claims, or harm to our reputation or competitive position;
disclosure and misuse of personal data that could cause liability and harm to our reputation;
the possibility that we may not be able to protect information stored in our products and services from use by others;
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abuse of our advertising or social platforms that may harm our reputation or user engagement;
the development of the internet of things presenting security, privacy, and executionlitigation risks;
issues about the use of artificial intelligence in our offerings that may result in competitive harm, legal liability, or reputational harm;intellectual property risks;
excessive outages, data losses,risks relating to Microsoft’s reputation and disruptions of our online services if we fail to maintain an adequate operations infrastructure;brands;
quality or supply problems;
government litigation and regulatory activityrisks relating to competition rules that may limit how we design and market our products;
potential liability under trade protection, anti-corruption, and other laws resulting from our global operations;
laws and regulations relating to the handling of personal data that may impede the adoption of our services or result in increased costs, legal claims, fines, or reputational damage;
claims against us that may result in adverse outcomes in legal disputes;
uncertainties relating to our business with government customers;
additional tax liabilities;
the possibility that we may fail to protect our source code;
legal changes, our evolving business model, piracy, and other factors may decrease the value of our intellectual property;
claims that Microsoft has infringed the intellectual property rights of others;
damage to our reputation or our brands that may harm our business and operating results;
adverse economic or market conditions that may harm our business;conditions;
risks relating to catastrophic events or geo-political conditions, such as the COVID-19 pandemic, that may disrupt our business;
exposure to increased economic and operational uncertainties from operating a global business, including the effects of foreign currency exchange;geopolitical conditions; and
the dependence of our business on our abilityrisks relating to attractattracting and retain talentedretaining employees.
A detailed discussionAll of these and other risks and uncertainties that could cause actual results and events to differ materially from suchthe forward-looking statements is includedMicrosoft makes in or in connection with this prospectus are qualified by the information contained or incorporated by reference herein, including the information contained under this heading and the heading “Risk Factors” andinformation detailed in Part I, Item 1A of ourMicrosoft’s Annual Report on Form 10-K Part II, Item 1A of ourfor the fiscal year ended June 30, 2023, Quarterly Reports on Form 10-Q for the quarters ended September 30, 2023, December 31, 2023, and our Current ReportsMarch 31, 2024 and other filings Microsoft makes with the SEC that are incorporated herein by reference. For additional information, see the sections titled “Risk Factors” and “Where You Can Find More Information” elsewhere in this prospectus.
Forward-looking statements are based on Form 8-Kthe estimates and opinions of management at the time the statements are made. Except to the extent required by applicable law, Microsoft does not undertake any obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise. You are cautioned not to place undue reliance on these forward-looking statements that speak only as of the date hereof.
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The following is a summary of some of the information contained or incorporated by reference in this prospectus. These factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included or incorporated by reference in this prospectus.
We undertake no obligation to update or revise publicly any forward-looking statements, whether because of new information, future events, or otherwise, except as required by law.
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This summary highlights information appearing elsewhere in this prospectus and maydoes not contain all of the details concerning the exchange offers or the Registered Notes, including information that may be important to you. YouTo better understand our business and financial position, you should readcarefully review this entire prospectus carefully,document and the documents incorporated by reference herein, including the information set forth under the heading “Risk Factors” and the information incorporated by reference in this prospectus before participating in the Exchange Offers. See the sections of this prospectus titled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.“Cautionary Statement Regarding Forward-Looking Statements.”
Embracing Our FutureMicrosoft Corporation
Microsoft is a technology company whose mission is to empower every person and every organization on the planet to achieve more. We strive to create local opportunity, growth, and impact in every country around the world. OurWe are creating the platforms and tools, help drivepowered by artificial intelligence, that deliver better, faster, and more effective solutions to support small business productivity,and large business competitiveness, and public-sector efficiency. They also support new startups, improve educational and health outcomes, grow public-sector efficiency, and empower human ingenuity. As the world continuesFrom infrastructure and data, to respond to the coronavirus (“COVID-19”), we are working to do our part by ensuring the safety of our employees, striving to protect the healthbusiness applications and well-being of the communities in which we operate, and providing technology and resources to our customers to help them do their best work while remote.
We continue to transform our business to lead in the new era of the intelligent cloud and intelligent edge. We bring technology and products together into experiences and solutions that unlock value for our customers. Our unique role as a platform and tools provider allows us to connect the dots, bring together an ecosystem of partners, and enable organizations of all sizes to build the digital capability required to address these challenges.
In this next phase of innovation, computing is more powerful and ubiquitous from the cloud to the edge. Artificial intelligence (“AI”) capabilities are rapidly advancing, fueled by data and knowledge of the world. Physical and virtual worlds are coming together with the Internet of Things (“IoT”) and mixed reality to create richer experiences that understand the context surrounding people, the things they use, the places they go, and their activities and relationships. A person’s experience with technology spans a multitude of devices and has become increasingly more natural and multi-sensory with voice, ink, and gaze interactions.
What We Offer
Founded in 1975, we develop and support software, services, devices, and solutions that deliver new value for customers and help people and businesses realize their full potential.
We offer an array of services, including cloud-based solutions that provide customers with software, services, platforms, and content, andcollaboration, we provide solution support and consulting services. We also deliver relevant online advertisingunique, differentiated value to a global audience.customers.
Our products include operating systems; cross-device productivity applications; server applications; business solution applications; desktop and server management tools; software development tools; and video games. We also design, manufacture, and sell devices, including PCs, tablets, gaming and entertainment consoles, other intelligent devices, and related accessories.
Corporate Information
Microsoft Corporation, a Washington corporation, was founded as a partnership in 1975 and incorporated under the laws of the State of Washington in 1981. Our principal executive offices are located at One Microsoft Way, Redmond, Washington 98052-6399, and our main telephone number is (425) 882-8080. OurWe maintain a website address is www.microsoft.com. Information contained on, or that can be accessed through,at http://www.microsoft.com. However, our website does not constitute part of this prospectus, and inclusions ofthe information on our website address in this prospectus are inactive textual references only.
The Exchange Offers
The following summary is provided solely for your conveniencenot part of, and is not intended to be complete. You should read the full text and more specific details contained elsewhere inincorporated by reference into, this prospectus for a more detailed description of the notes.prospectus.
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Background | On November 6, 2023, we (i) completed early settlement of our private exchange offers to all eligible holders for any and all outstanding notes issued by Activision Blizzard (the “Activision Blizzard Exchange Offer”) and issued Restricted Notes and (ii) in connection with the completion of the Activision Blizzard Exchange Offer, entered into a registration rights agreement with the dealer managers of the Activision Blizzard Exchange Offer with respect to the Restricted Notes (the “Registration Rights Agreement”). On November 16, 2023, we completed final settlement of the Activision Blizzard Exchange Offer and issued additional Restricted Notes. We are offering to issue the Registered Notes in exchange for the Restricted Notes to satisfy our obligations under the Registration Rights Agreement to holders of the Restricted Notes. |
After the exchange offers are complete, holders of Restricted Notes will no longer be entitled to any exchange or registration rights with respect to the Restricted Notes, except in the limited circumstances described in the Registration Rights Agreement. |
Exchange Offers | We are offering |
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are acquiring the Registered Notes in the ordinary course of business;
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have not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the Registered Notes; and
you are not an “affiliate” of the Company as defined in Rule 405 of the Securities Act.
By exchanging your Restricted Notes for Registered Notes, as described below, you will be deemed to be making representations to this |
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is an affiliate of the Company as defined in Rule 405 of the Securities Act; |
does not acquire the Registered Notes in the ordinary course of its business; or
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Conditions to the Exchange Offers | The exchange offers are subject to the following conditions, which the Company may waive: |
the exchange offers do not violate applicable law, rule, regulation or applicable interpretations of the staff of the SEC; and
there is no action or proceeding instituted or threatened in any court or by any governmental agency with respect to these exchange offers, which, in the Company’s judgment, could reasonably be expected to impair the Company’s ability to proceed with the exchange offers.
The exchange offers are not conditioned upon any minimum aggregate principal amount of the Restricted Notes being tendered for exchange. None of the exchange offers is conditioned on the consummation of |
See “Terms of the Exchange |
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Procedures for Tendering the Restricted Notes | If you wish to participate in the |
We have not provided guaranteed delivery procedures in conjunction with the |
For further information, call the exchange agent at the telephone numbers set forth under “Terms of the Exchange Offers—Exchange Agent” or consult your bank, broker, dealer, trust company or other nominee for assistance. |
If you are a beneficial owner that holds |
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account in respect of the tendered |
By tendering your Restricted Notes through ATOP, you will be deemed to represent to the Company that, among other things: |
any Registered Notes that you receive will be acquired in the ordinary course of business;
you have not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the Registered Notes;
if you are a broker-dealer that will receive Registered Notes for your own account in exchange for Restricted Notes that were acquired as a result of market-making activities, you will deliver a prospectus, as required by law, in connection with any resale of the Registered Notes; and
you are not an “affiliate” of the Company as defined in Rule 405 under the Securities Act.
Withdrawal of Tenders | Tenders of the Restricted Notes pursuant to the exchange offers may be withdrawn at any time prior to the expiration time. To withdraw, you must send a written notice of withdrawal to the exchange agent at its address indicated under “Terms of the Exchange Offers—Exchange Agent” before the expiration time of the exchange offers. |
Acceptance of the Restricted Notes and Delivery of the Registered Notes | If all of the conditions to the completion of these exchange offers are satisfied, the Company will accept any and all Restricted Notes that are properly tendered in these exchange offers and not properly withdrawn before the expiration time. The Company will return any Restricted Notes that the Company does not accept for exchange to its registered holder at the Company’s expense promptly after the expiration time. The Company will deliver the Registered Notes to the registered holders of Restricted Notes accepted for exchange promptly after the expiration time and acceptance of such Restricted Notes. See “Terms of the Exchange Offers—Acceptance of Restricted Notes for Exchange; Delivery of Registered Notes.” |
Effect on Holders of the Restricted Notes | As a result of making, and upon acceptance for exchange of all validly tendered Restricted Notes pursuant to the terms of, the exchange offers, the Company will have fulfilled a covenant contained in the Registration Rights Agreement. If a holder of Restricted Notes does not tender its Restricted Notes in the exchange offers, such holder will continue to hold its Restricted Notes and such holder will be entitled to all the rights and limitations applicable to |
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the Restricted Notes in the Indenture (as defined below in “The Registered Notes”), except for any rights under the Registration Rights Agreement that by their terms terminate upon the consummation of the exchange offers. See “Terms of the Exchange Offers—Purpose and Effect of the Exchange Offers.” |
Consequences of Failure to Exchange |
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We may be required to amend or supplement this prospectus at any time to add, update or change the information contained in this prospectus. You should read this prospectus and any amendment or supplement hereto, together with the documents incorporated by reference herein and therein and the additional information described under “Where You Can Find More Information.”6
The New NotesTHE REGISTERED NOTES
The Newterms of the Registered Notes will be governed by the same indenture under which the Existing Notes were issued. The followingare summarized below. This summary is not intended to be a complete description of the terms of the NewRegistered Notes. For a more detailed description of the NewRegistered Notes, see the discussion under the heading “Description of the Notes.” In this section, the terms “Microsoft,” the “Company,” the “Issuer,” “we” and “our” refer only to Microsoft Corporation and not any of its subsidiaries. Other than the restrictions on transfer, registration rights and additional interest provisions, each series of the Registered Notes will have the same terms as the corresponding series of the Restricted Notes.
The Restricted Notes were, and the Registered Notes will be, issued by Microsoft Corporation. The following table sets forth the title (including interest rate), CUSIP numbers of corresponding series of Restricted Notes, maturity date, aggregate principal amount and interest payment dates of each series of Registered Notes offered hereby. The Restricted Notes were, and the Registered Notes will be, issued pursuant to the Fifteenth Supplemental Indenture, dated as of November 6, 2023 (the “Fifteenth Supplemental Indenture”), to the Indenture, dated as of May 18, 2009 (the “Base Indenture”; the Base Indenture as amended, supplemented or otherwise modified by the Fifteenth Supplemental Indenture, the “Indenture”), between Microsoft Corporation and The Bank of New Notes” inYork Mellon Trust Company, N.A., as trustee, each of which has been filed as an exhibit to the registration statement of which this prospectus.prospectus forms a part.
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3.400% Notes due 2026 | 594918CG7 and U59340AH9 | September 15, 2026 | $762,661,000 | March September 15 | ||||
3.400% Notes due 2027 | 594918CH5 and U59340AJ5 | June 15, 2027 | $354,793,000 | June 15 and December 15 | ||||
1.350% Notes due 2030 | 594918CJ1 and U59340AK2 | September 15, 2030 | $448,585,000 | March 15 and September 15 | ||||
4.500% Notes due 2047 | 594918CK8 and U59340AL0 | June 15, 2047 | $394,262,000 | June 15 and December 15 | ||||
2.500% Notes due 2050 | 594918CL6 and U59340AM8 | September 15, 2050 | $1,440,382,000 | March 15 and September 15 |
Interest Payment Dates | Interest on the |
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Ranking | The |
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Trustee, Registrar and Paying Agent | The Bank of New York Mellon Trust Company, N.A. |
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Risk Factors |
No Public Market | The Registered Notes are new securities, and there is currently no established trading market for the Registered Notes. See “Risk Factors.” An active trading market may not |
Governing Law | The |
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Investing in the Registered Notes involves risks, which risks are substantially equivalent to those applicable to the Restricted Notes exchanged therefor except that the Registered Notes will be registered. Before participating in the Exchange Offers,exchange offers, you should carefully consider the following risk factors and all other information set forth or incorporated by reference in this prospectus, together with the registration statement and the exhibits thereto, including the risks and uncertainties described under the heading “Risk Factors” included in Part I, Item 1A of ourMicrosoft’s Annual Report on Form 10-K for the fiscal year ended June 30, 20202023 and Part II, Item 1A of our Quarterly Reports on Form 10-Q for the quarterly periods ended September 30, 2020 and2023, December 31, 2020.2023, and March 31, 2024. See “Where You Can Find More Information” and “Cautionary Statement Regarding Forward-Looking Statements” in this prospectus. The risks and uncertainties described below are not the only risks facing us and your investment in the NewRegistered Notes. Additional risks and uncertainties that we are unaware of, or those we currently deem less significant, also may become important factors that affect us. The following risks could materially and adversely affect our business, financial condition, results of operations or liquidity. The value of the NewRegistered Notes could decline due to any of these risks, and you may lose all or part of your investment.
Risks Related to the Registered Notes
The Indenture governing the Registered Notes does not contain financial covenants or meaningful restrictions on us or our subsidiaries.
Neither Microsoft nor any of its subsidiaries are restricted from incurring additional debt or other liabilities, including debt secured by liens, under the Indenture. Microsoft may from time to time incur additional debt and other liabilities. In addition, Microsoft is not restricted from paying dividends or making distributions on Microsoft’s capital stock or purchasing or redeeming capital stock under the Indenture.
Active trading markets for the Registered Notes may not develop.
The Registered Notes are new issues of securities with no established trading. Microsoft does not intend to apply for listing of the Registered Notes on any securities exchange. We cannot assure you trading markets for the Registered Notes will develop or of the ability of holders of the Registered Notes to sell their notes or of the prices at which holders may be able to sell their notes. The dealer managers are not obligated to make a market in any series of Registered Notes, and any market-making with respect to the Registered Notes may be discontinued, in their sole discretion, at any time without notice. If no active trading markets develop, you may be unable to resell the Registered Notes at any price or at their fair market value.
If trading markets do develop, changes in Microsoft’s ratings or the financial markets could adversely affect the market prices of the Registered Notes.
The market prices of the Registered Notes will depend on many factors, including, among others, the following:
ratings on our debt securities assigned by rating agencies;
the prevailing interest rates being paid by other companies similar to us;
our results of operations, financial condition and prospects; and
the condition of the financial markets.
The condition of the financial markets and prevailing interest rates have fluctuated in the past and are likely to fluctuate in the future, which could have an adverse effect on the market prices of the Registered Notes.
Rating agencies continually review the ratings they have assigned to companies and debt securities. Negative changes in the ratings assigned to us or our debt securities could have an adverse effect on the market prices of the Registered Notes.
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Risks Related to the Exchange Offers
You may have difficulty selling the Restricted Notes that you do not exchange.
If you do not exchange your Restricted Notes for Registered Notes in the exchange offers, you will continue to be subject to the restrictions on transfer of your Restricted Notes described in the legend on your Restricted Notes and we will not be required to offer another opportunity for you to exchange your Restricted Notes for registered notes, except in limited circumstances. The liquidityrestrictions on transfer of your Restricted Notes arise because we issued the Restricted Notes under exemptions from, or in transactions not subject to, the registration requirements of the ExistingSecurities Act and applicable state securities laws. In general, you may offer or sell the Restricted Notes only if they are registered under the Securities Act and applicable state securities laws or are offered and sold under an exemption from these requirements. We do not intend to register the Restricted Notes that remain outstanding after completion of the exchange offers under the Securities Act. We may in the future seek to acquire untendered Restricted Notes in the open market or privately negotiated transactions, through subsequent exchange offers or otherwise. We have no present plans to acquire any Restricted Notes that are not exchangedtendered in the exchange offers or to file a registration statement to permit resales of any untendered Restricted Notes. To the extent Restricted Notes are tendered and accepted in the exchange offers, the trading market, if any, for the remaining Restricted Notes would likely be adversely affected. See “Terms of the Exchange Offers—Consequences of Failure to Exchange” for a discussion of the possible consequences of failing to exchange your Restricted Notes.
Because we anticipate that most holders of the Restricted Notes will be reduced.
Weelect to exchange their Restricted Notes, we expect that the tradingliquidity of the market for unexchanged Existingany Restricted Notes remaining after the completion of the exchange offers will become more limited than the existing trading marketbe substantially limited. Any Restricted Notes tendered and could cease to exist altogether due to the reductionexchanged in the exchange offers will reduce the aggregate principal amount of the ExistingRestricted Notes outstanding upon consummation of the Exchange Offers. Because ofapplicable series outstanding. Following the acceptance priority levels, it is more likely that a reduction in the principal amount outstanding could occur with respectexchange offers, if you do not tender your Restricted Notes you generally will not have any further registration rights, and your Restricted Notes will continue to a series of Existing Notes having a higher priority acceptance level. A more limited trading market for a particular series of Existing Notes might adversely affectbe subject to certain transfer restrictions. Accordingly, the liquidity market price and price volatility of such series of Existing Notes. If a market for unexchanged Existing Notes exists or develops, those securities may trade at a discount to the price at which the securities would trade if the amount outstanding were not reduced, depending on prevailing interest rates, the market for similarthe Restricted Notes could be adversely affected.
Broker-dealers or noteholders may become subject to the registration and prospectus delivery requirements of the Securities Act.
Any broker-dealer that exchanges its Restricted Notes in the exchange offers for the purpose of participating in a distribution of the Registered Notes, or resells Registered Notes that were received by it for its own account in the exchange offers, may be deemed to have received restricted securities and other factors. However, we cannot assure youmay be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction by that an active marketbroker-dealer. Any profit on the resale of the Registered Notes and any commission or concessions received by a broker-dealer may be deemed to be underwriting compensation under the Securities Act.
In addition to broker-dealers, any noteholder that exchanges its Restricted Notes in the unexchanged Existing Notes will exist, develop or be maintained or as toexchange offers for the prices at whichpurpose of participating in a distribution of the unexchanged ExistingRegistered Notes may be traded.deemed to have received restricted securities and may be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction by that noteholder.
We have not made a recommendation asYou must comply with the exchange offer procedures in order to whether you should tender your Existingreceive freely tradable Registered Notes.
Delivery of the Registered Notes in exchange for the NewRestricted Notes in the Exchange Offers,tendered and we have not made a determination or obtained a third-party determination that the Exchange Offers are fair to holders of the Existing Notes.
Neither we nor our board of directors has made, nor will either make, any recommendation as to whether holders of Existing Notes should tender their Existing Notes inaccepted for exchange for the New Notes pursuant to the Exchange Offers. Furthermore, neither we nor our boardexchange offers will be made only if such tenders comply with the exchange offer procedures described herein, including the timely receipt by the exchange agent of directors has made any determination that the consideration to be received represents a fair valuationbook-entry transfer of the ExistingRestricted Notes into such exchange agent’s account at DTC, as depositary, including an agent’s message. We are not required to notify you of defects or irregularities in tenders of Restricted Notes for exchange. The method of delivery of Restricted Notes and we also have not retained,all other required documents to the exchange agent is at the election and do not intend to retain, any unaffiliated representative to act solely on behalfrisk of the holders of Existing Notes for purposesthe Restricted Notes.
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Consummation of negotiating the termsexchange offers may not occur.
Each of the exchange offers is subject to the satisfaction of certain conditions. See “Terms of the Exchange Offers or preparing a report or making any recommendation concerning the fairness of the Exchange Offers. Holders of Existing Notes must make their own independent decisions regarding their participation in the applicable Exchange Offer.
The Exchange Offers may be cancelled or delayed.
The consummation of the Exchange Offers is subject to, and conditional upon, the satisfaction or, where permitted, waiver of the conditions specified in this prospectus. See “Description of the Exchange Offers——Conditions to the Exchange Offers.Offers.” In addition, unless we waive such condition, if less than $3,000,000,000 of New 2052 Notes would be issued, then all Pool 1 Note tenders will be
cancelled and no New 2052 Notes will be created; and unless we waive such condition, if less than $750,000,000 of New 2062 Notes would be issued, then all Pool 2 Note tenders will be cancelled and no New 2062 Notes will be created. Even if each of the Exchange Offers isexchange offers are completed, the Exchange Offersthey may not be completed on the scheduletiming described in this prospectus. Accordingly, holders participating in the Exchange Offersexchange offers may have to wait longer than they expectexpected to receive their Registered Notes, during which time such holders will not be able to effect transfers of their Restricted Notes tendered in the New Notes.
Weexchange offers. Until we announce whether we have established prioritiesaccepted valid tenders of Restricted Notes for acceptanceexchange pursuant to an exchange offer, no assurance can be given that such exchange offer will be completed. In addition, subject to applicable law and as provided in this prospectus, we may, in our sole discretion, extend, re-open, amend, waive any condition of or terminate any of the Existing Notes, which makes it more likely that holdersexchange offers at any time before our announcement of series of Existing Notes with a lower acceptance priority may be excluded from acceptance of tender. Any tenders that are accepted may be prorated.
If New Notes in an aggregate principal amount in excess of the applicable New Issue Cap are to be issued pursuant to validly tendered Existing Notes in the applicable Exchange Offer at the Expiration Time,whether we will accept valid tenders of ExistingRestricted Notes by series in accordance with the “acceptance priority level” (in numerical priority order) set forth in the applicable table on the front cover of this prospectus. With respect to Existing Notes tendered in an Exchange Offer, and not validly withdrawn prior to the Expiration Time, such Existing Notes of a series having a higher acceptance priority level will be accepted for exchange before anypursuant to such Existing Notes of a series having a lower acceptance priority level.
If acceptance of all validly tendered Existing Notes of a series would result in us issuing New Notes having an aggregate principal amount in excess of the applicable New Issue Cap, the tendered Existing Notes of such series will be accepted subject to proration. See “Description of the Exchange Offers—Acceptance Priority Levels and Proration Procedures.”
Late deliveries of Existing Notes or any other failure to comply with the Exchange Offer procedures could prevent a holder from exchanging its Existing Notes.
Holders of Existing Notes are responsible for complying with all the procedures of the Exchange Offers. The issuance of New Notes in exchange for Existing Notes will only occur upon proper completion of the procedures described in this prospectus under “Description of the Exchange Offers.” Therefore, holders of Existing Notes who wish to exchange their Existing Notes for New Notes should allow sufficient time for timely completion of the procedures of the Exchange Offers. Neitheroffer, which we nor the Exchange Agent are obligated to extend the Exchange Offers or notify you of any failure to follow the proper procedures.
We may acquire New Notes in future transactions.
We may in the future seek to acquire New Notes in open market or privately-negotiated transactions, through subsequent exchange offers or otherwise. The terms of any of those purchases or offers could differ from the terms of these Exchange Offers and such other terms may be more or less favorable to holders of the New Notes.
Risks Related to the New Notes
The Indenture governing the New Notes does not contain financial covenants or meaningful restrictions on us or our subsidiaries.
Neither we nor any of our subsidiaries are restricted from incurring additional debt or other liabilities, including debt secured by liens, under the Indenture. We may from time to time incur additional debt and other liabilities. In addition, we are not restricted from paying dividends or making distributions on our capital stock or purchasing or redeeming our capital stock under the Indenture.
Active trading markets for the New Notes may not develop.
The New Notes are new issues of securities with no established trading markets. We do not intend to apply for listing of the New Notes on any securities exchange. We cannot assure you trading markets for the New Notes will develop or of the ability of holders of the New Notes to sell their notes or of the prices at which holders may be able to sell their notes. The Dealer Managers have advised us that they currently intendexpect to make a market in each series ofas soon as reasonably practicable after the New Notes. However, the Dealer Managers are not obligated to do so, and any market-making with respect to the New Notes may be discontinued, in their sole discretion, at any time without notice. If no active trading markets develop, you may be unable to resell the New Notes at any price or at their fair market value.
If trading markets do develop, changes in our ratings or the financial markets could adversely affect the market prices of the New Notes.
The market prices of the New Notes will depend on many factors, including, among others, the following:expiration date.
ratings on our debt securities assigned by rating agencies;
the prevailing interest rates being paid by other companies similar to us;
our results of operations, financial condition and prospects; and
the condition of the financial markets.
The condition of the financial markets and prevailing interest rates have fluctuated in the past and are likely to fluctuate in the future, which could have an adverse effect on the market prices of the New Notes.
Rating agencies continually review the ratings they have assigned to companies and debt securities. Negative changes in the ratings assigned to us or our debt securities could have an adverse effect on the market prices of the New Notes.11
We will not receive any cash proceeds from the issuance of the NewRegistered Notes. In consideration for issuing the Registered Notes as contemplated in this prospectus, the Company will receive in exchange Restricted Notes in like principal amount, which will be cancelled, and, as such, issuing the Exchange Offers. The Existing Notes that are surrendered in exchange for the NewRegistered Notes will be retired and cancelled and cannot be reissued.not result in any increase in the Company’s indebtedness.
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DESCRIPTIONTERMS OF THE EXCHANGE OFFERS
TermsPurpose and Effect of the Exchange Offers
We are offering to holders, uponand the terms and subjectdealer managers entered into a Registration Rights Agreement with respect to the conditions set forth in this prospectus, consideration consistingRestricted Notes on November 6, 2023. Pursuant to the Registration Rights Agreement, we agreed, among other things, to use commercially reasonable efforts to (1) file a registration statement on Form S-4 with respect to a registered offer to exchange each series of up to $6,250,000,000Restricted Notes for a like aggregate principal amount of our New 2052Registered Notes, (the “New 2052with terms substantially identical in all material respects to such series of Restricted Notes Issue Cap”(except that the Registered Notes will not contain terms with respect to transfer restrictions or any increase in annual interest rate) and (2) cause the registration statement to be declared effective under the Securities Act by January 29, 2025. In furtherance of the foregoing, we have filed with the SEC a registration statement on Form S-4 (File No. 333- ) with respect to the exchange offers and the Registered Notes. We agreed to use commercially reasonable efforts to complete the exchange offer for each series of notes within 60 days after the registration statement is declared effective by the SEC. If for any reason the exchange offers are not completed on or prior to January 29, 2025 or if, following such date, the Company receives a cash payment,written request from certain holders of the Restricted Notes for the filing of a shelf registration statement, then the Company will be required to use commercially reasonable efforts to file and upcause to $2,000,000,000 (increased from $1,250,000,000) aggregatebecome effective a shelf registration statement under the Securities Act which would cover resales of the registrable securities of such series held by such persons.
After the SEC declares this exchange offer registration statement effective, we will offer the Registered Notes in return for the Restricted Notes. Each of the exchange offers will remain open for no fewer than 20 business days (or longer if required by applicable law) beginning with the date we electronically deliver notice of such exchange offer to the holders of the applicable Restricted Notes. For each Restricted Note surrendered to us pursuant to an exchange offer, the holder of the Restricted Note will receive a Registered Note having a principal amount equal to that of our New 2062the surrendered Restricted Note. Interest on the Registered Notes (the “New 2062will be payable semi-annually and will accrue from the most recent interest payment date on which interest was paid on the applicable series of Restricted Notes Issue Cap”prior to the date such series of Registered Notes are issued, which was December 15, 2023 in the case of the Registered 2027 Notes and togetherthe Registered 2047 Notes and March 15, 2024 in the case of the Registered 2026 Notes, the Registered 2030 Notes and the Registered 2050 Notes.
Under existing SEC interpretations, the Registered Notes acquired in the exchange offers by holders of Restricted Notes will be freely transferable without further registration under the Securities Act if the holder of the Registered Notes is acquiring the Registered Notes in the ordinary course of its business, has no arrangement or understanding to participate in the distribution of the Registered Notes and is not an affiliate of the Company, as such terms are interpreted by the SEC; however, broker-dealers (“participating broker-dealers”) receiving Registered Notes in a registered exchange offer will also have a prospectus delivery requirement with respect to resales of such Registered Notes. The SEC has taken the position that participating broker-dealers may fulfill their prospectus delivery requirements with respect to Registered Notes (other than a resale of an unsold allotment from the original sale of the Restricted Notes) with the New 2052prospectus contained in the exchange offer registration statement relating to such Registered Notes.
This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Registered Notes Issue Cap, the “New Issue Cap”) and a cash payment, as applicable,received in exchange for their ExistingRestricted Notes allthat were acquired by such broker-dealer as described under “—Total Exchange Consideration and Exchange Consideration.”a result of market-making or other trading activities. We have agreed that, for a period of up to 180 days after the expiration date of the exchange offers, if requested by one or more such broker-dealers, we will amend or supplement this prospectus in order to expedite or facilitate the disposition of any Registered Notes by any such broker-dealers.
HoldersA holder of each series of ExistingRestricted Notes acceptedwho exchanges its Restricted Notes for Registered Notes in the exchange offers will be eligibledeemed to represent that (1) any Registered Notes to be received by it will be acquired in the ordinary course of its business, (2) at the time of the commencement of the exchange offers, it has no
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arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of the Registered Notes in violation of the provisions of the Securities Act and it is not engaged in, and does not intend to engage in, the distribution of the Registered Notes, (3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company, and (4) if such holder is a broker-dealer that will receive the applicable Total Exchange ConsiderationRegistered Notes for its own account in exchange for the Restricted Notes that were acquired as determined as described under “—Total Exchange Consideration and Exchange Consideration”a result of market-making or other trading activities, then such holder will deliver a prospectus (or, to the extent permitted by law, make available a prospectus to purchasers) in connection with any resale of such Registered Notes. See “Plan of Distribution.”
The Registration Rights Agreement provides, among other things, that if we have not exchanged Registered Notes for such series of Existingall Restricted Notes validly tendered on or before the Early Exchange Time and not validly withdrawn. The Total Exchange Consideration includes the Early Exchange Premium. For Existing Notes validly tendered after the Early Exchange Time and on or before the Expiration Time, the holders of each series of Existing Notes accepted for exchange will be eligible to receive the applicable Exchange Consideration as described under “—Total Exchange Consideration and Exchange Consideration.” The New Notes will only be issued in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. Tendering holders of Existing Notes must tender Existing Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. In addition to the Total Exchange Consideration or Exchange Consideration, as applicable, holders with Existing Notes that are accepted for exchange will receive a cash payment representing (i) all or a portion of the accrued and unpaid interest to, but not including, the Settlement Date, and (ii) amounts due in lieu of any fractional amounts of New Notes, in each case, as described under “—Accrued Interest” and “—No Fractional Amounts of New Notes.” As DTC is the record holder of the Existing Notes, all holders of any Existing Notes will also receive any applicable accrued and unpaid interest on those Existing Notes in accordance with DTC procedures, regardless of the record dates with respect to each series of Existing Notes. We will accept valid tenders of Existing Notes by series in accordance with the acceptance priority levels (in numerical priority order)terms of the exchange offers on or prior to January 29, 2025, or if a shelf registration statement is required under the limited circumstances set forth in the applicable tableRegistration Rights Agreement and such shelf registration statement is not declared effective on or prior to the 60th day after the later of January 29, 2025 and the date on which the Company receives a duly executed request from certain holders of Restricted Notes for the filing of a shelf registration, then the annual interest rate on the front coverRestricted Notes will increase initially by 0.25% per annum for the first 90-day period immediately following the occurrence of such registration default. The annual interest rate on the Restricted Notes will increase by an additional 0.25% per annum for each subsequent 90-day period that such additional interest continues to accrue; however, the rate at which such additional interest accrues may in no event exceed 1.00% per annum. The additional interest will cease to accrue when all registration defaults are cured. See “Exchange Offers; Registration Rights.”
Resale of Registered Notes
Based on the position that the staff of the SEC enunciated in Exxon Capital Holdings Corporation, Morgan Stanley & Co. Incorporated and Shearman & Sterling, the Registered Notes issued in the exchange offers may be offered for resale, resold and otherwise transferred without registration under the Securities Act, and without delivering a prospectus that satisfies the requirements of Section 10 of the Securities Act, if the holder of the Restricted Notes who wishes to exchange its Restricted Notes for Registered Notes can make the representations set forth below under “—Procedures for Tendering the Restricted Notes.” However, if such holder intends to participate in a distribution of the Registered Notes, is a broker-dealer that acquired the Restricted Notes directly from us for its own account in the initial offering of the Restricted Notes and not as a result of market-making activities or other trading activities or is an “affiliate” of the Company as defined in Rule 405 under the Securities Act, such holder will not be eligible to participate in the exchange offers, and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with the resale of its Restricted Notes. See “—Additional Obligations” below.
A broker-dealer that has acquired Restricted Notes as a result of market-making or other trading activities has to deliver a prospectus in order to resell any Registered Notes it receives for its own account in the exchange offers. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Registered Notes received in exchange for Restricted Notes that were acquired by such broker-dealer as a result of market-making or other trading activities. We have agreed that, for a period of up to 180 days after the expiration date of the exchange offers, if requested by one or more such broker-dealers, we will amend or supplement this prospectus subjectin order to proration as discussed under “—Acceptance Priority Levels and Proration Procedures.expedite or facilitate the disposition of any Registered Notes by any such broker-dealers. See “Plan of Distribution” for more information regarding broker-dealers.
TotalThe exchange offers are not being made to, nor will we accept tenders for exchange from, holders of Restricted Notes in any jurisdiction in which these exchange offers or the acceptance of the exchange offers would not be in compliance with the securities or blue sky laws.
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Terms of the Exchange Consideration and Exchange ConsiderationOffers
Upon the terms and subject to the conditions set forth in this prospectus:
If you validly tender Existingprospectus, we will accept for exchange any and all Restricted Notes prior to the Early Exchange Time and do not validly withdraw such tendered Existing Notes prior to the Expiration Time, and such Existing Notes are accepted by us, you will receive, for each $1,000 principal amount of Existing Notesproperly tendered and accepted, a combination of a principal amount of New Notes and cash with an aggregate value equal to the Total Exchange Consideration as follows:
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If you validly tender Existing Notes after the Early Exchange Time, but prior to the Expiration Time, and such Existing Notes are accepted by us, you will receive, for each $1,000 principal amount of Existing Notes tendered and accepted, a combination of a principal amount
of New Notes and cash with an aggregate value equal to the Exchange Consideration as follows:
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In addition to the Total Exchange Consideration or Exchange Consideration, as applicable, holders with Existing Notes that are accepted for exchange will receive a cash payment representing (i) all or a portion of the accrued and unpaid interest to, but not including, the Settlement Date, and (ii) amounts due in lieu of any fractional amounts of New Notes, in each case, as described under “—Accrued Interest” and “—No Fractional Amounts of New Notes.” As DTC is the record holder of the Existing Notes, all holders of any Existing Notes will also receive any applicable accrued and unpaid interest on those Existing Notes in accordance with DTC procedures, regardless of the record dates with respect to each series of Existing Notes.
The “Pricing Time” is 10:00 a.m., New York City time, on March 2, 2021.
The “Total Exchange Consideration” (calculated at the Pricing Time and in accordance with the formula set forth in Annex A to this prospectus) for the Existing Notes validly tendered prior to the Early Exchange Time, and not validly withdrawn prior to the Expiration Time, is equal to the discounted value on the Settlement Date of the remaining payments of principal and interest per $1,000 principal amount of the Existingexpiration time. The Restricted Notes through the applicable maturity date or par call date (as applicable) of the Existing Notes, using a yield equal to the sum of: (i) the bid-side yield on the 30-year Reference UST Security set forth with respect to each series of Existing Notes on the front cover of this prospectus plus (ii) the applicable fixed spread set forth with respect to each series of Existing Notes on the front cover of this prospectus, minus accrued and unpaid interest on such series of Existing Notes up to but not including the Settlement Date. For the avoidance of doubt, the $30 per $1,000 Early Exchange Premium is included within the Total Exchange Consideration, as calculated using the Fixed Spread over the 30-year Reference UST Security as described herein, and is notmay only be tendered in addition to the Total Exchange Consideration. Further, for the avoidance of doubt, for the Existing Notes that have par call dates, if the applicable Exchange Offer Yield as determined in accordance with this prospectus is less than the contractual annual rate of interest, then such Total Consideration will be calculated based on the par call date; if the applicable Exchange Offer Yield as determined in accordance with this prospectus is higher than or equal to the contractual annual rate of interest, then such Total Consideration will be calculated based on the maturity date.
The “Exchange Consideration” for the Existing Notes validly tendered after the Early Exchange Time but prior to the Expiration Time is equal to the Total Exchange Consideration minus the applicable Early Exchange Premium.
The “Cash Component” is the portion of the Total Exchange Consideration to be paid to holders in cash and is equal to (i) the applicable Cash Payment Percent of Premium for such series of Existing Notes multiplied by (ii) (a) the applicable Total Exchange Consideration for such series of Existing Notes minus (b) $1,000.
The Dealer Managers will calculate the interest rate of the New Notes, the Total Exchange Consideration, the Exchange Consideration, the Cash Component and accrued interest for each of the Existing Notes, and their calculations will be final and binding absent manifest error, subject to holders of Existing Notes disputing such determination in a court of competent jurisdiction. We will announce
the interest rate of the New Notes, the Total Exchange Consideration, the Exchange Consideration and the Cash Component for the Existing Notes promptly after they are determined by the Dealer Managers. The formula that will be used by the Dealer Managers in making the calculations of the Total Exchange Consideration and the Exchange Consideration is attached hereto as Annex A. The final pricing terms of the Exchange Offers are set forth in Annex B attached hereto.
You can obtain recently calculated hypothetical quotes of the yield for the 30-year Reference UST Security set forth with respect to each series of Existing Notes on the front cover of this prospectus, the hypothetical interest rate of the New Notes, the hypothetical Total Exchange Consideration and the hypothetical Exchange Consideration for the Existing Notes prior to the Pricing Time, and can obtain the actual yield for the 30-year Reference UST Security set forth with respect to each series of Existing Notes on the front cover of this prospectus, the interest rate of the New Notes, the Total Exchange Consideration and the Exchange Consideration for the Existing Notes after the Pricing Time, by contacting the Dealer Managers at the addresses and telephone numbers set forth on the back cover of this prospectus. Although the Dealer Managers will calculate the Total Exchange Consideration and the Exchange Consideration for the Existing Notes based solely on the yield on the 30-year Reference UST Security set forth with respect to each series of Existing Notes on the front cover of this prospectus, you can also find information regarding the closing yield to maturity for each 30-year Reference UST Security on any trading day in the online versions of TheWall Street Journal and The New York Times.
Early Exchange Premium
To encourage holders of Existing Notes to tender prior to the Early Exchange Time, the Total Exchange Consideration includes an Early Exchange Premium of $30 principal amount of New 2052 Notes or $30 principal amount of New 2062 Notes, as applicable, for each $1,000 principal amount of Existing Notes validly tendered and not validly withdrawn. Only holders who validly tender their Existing Notes prior to the Early Exchange Time (and who do not validly withdraw prior to the Expiration Time), and whose tenders are accepted for exchange pursuant to the Exchange Offers, will receive the Early Exchange Premium.
Holders who validly tender their Existing Notes after the Early Exchange Time but prior to the Expiration Time, and whose tenders are accepted for exchange, will receive only the Exchange Consideration, which does not include the Early Exchange Premium.
Accrued Interest
In addition to the Total Exchange Consideration or the Exchange Consideration, as applicable, we will pay all of the accrued and unpaid interest to, but not including, the Settlement Date on Existing Notes which are validly tendered and accepted. As DTC is the record holder of the Existing Notes, all holders of any Existing Notes will also receive any applicable accrued and unpaid interest on those Existing Notes in accordance with DTC procedures, regardless of the record dates with respect to each series of Existing Notes.
No Fractional Amounts of New Notes
New Notes will be issued in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.of $2,000. We will not accept any tender that would result in the issuance of less thanissue $2,000 principal amount of New Notes. If, under the terms of the Exchange Offers, the aggregate principal amount of New Notes that any tendering holder is entitled to receive is not in a minimum denomination of $2,000 or an integral multiple of $1,000 in excess thereof we will round downward the amount of the New Notes to $1,000 or the nearest integral multiple of $1,000 in excess thereof and pay the difference in cash.
Acceptance Priority Levels and Proration Procedures
We will accept tenders of Existing Notes by series in accordance with the “acceptance priority level” (in numerical priority order) for each such series as set forth in the applicable table on the front cover of this prospectus. With respect to Existing Notes tendered in an Exchange Offer, such Existing Notes of a series having a higher acceptance priority level for such Exchange Offer will be accepted for exchange before any such Existing Notes of a series having a lower acceptance priority level.
If acceptance of all validly tendered Existing Notes of a series would result in us issuing New Notes having an aggregate principal amount in excess of the applicable New Issue Cap, the tendered Existing Notes of such series will be accepted subject to proration.
Any proration would result in the principal amount of Existing Notes of the applicable series accepted from a holder of ExistingRegistered Notes in exchange for New Notes to be equal to the applicablea corresponding principal amount of ExistingRestricted Notes that would otherwise have been accepted from such holder (based on such holder’s valid tenderssurrendered in the exchange offers. In exchange for each Restricted Note surrendered in the exchange offers, we will issue a Registered Note with a like principal amount.
The form and terms of the applicable series of Existing Notes) multiplied by the proration factor. The proration factor wouldRegistered Notes will be equalsubstantially identical in all material respects to the amountform and terms of the applicable New Issue Cap remaining available forRestricted Notes, except that the applicable series of ExistingRegistered Notes divided by the total aggregate principal amount of Existing Notes of the applicable series that were validly tendered. Depending on the aggregate principal amount of Existing Notes of the applicable series validly tendered and not validly withdrawn and the proration factor applied, if the principal amount of Existing Notes of such series returned to a holder as a result of proration would result in less than $2,000 of principal amount of Existing Notes of such series being returned to such holder, the Company will either accept or reject all of such holder’s Existing Notes of such series validly tendered and not validly withdrawn. The proration factor will be announced by press release as promptly as practicable after the Expiration Time. Existing Notes not accepted due to their acceptance priority level or the above proration procedures will be returned to their tendering holders promptly after the Expiration Time.
Expiration Time; Extensions; Amendments; Termination
For purposes of the Exchange Offers, the term “Expiration Time” means 11:59 p.m., New York City time, on March 15, 2021, subject to our right to extend that time and date in our absolute discretion, in which case the Expiration Time means the latest time and date to which an Exchange Offer is extended.
We reserve the right, in our absolute discretion, by giving oral or written notice to the Exchange Agent, to:
extend an Exchange Offer;
amend an Exchange Offer; and
terminate an Exchange Offer in those situations in which a condition to our obligation to exchange the series of Existing Notes subject to such Exchange Offer for New Notes and cash is not satisfied or waived on or before the Expiration Time.
If an Exchange Offer is amended in a manner that we determine constitutes a material change, we will extend such Exchange Offer for a period of two to ten business days, depending upon the significance of the amendment and the manner of disclosure to the holders, if such Exchange Offer would otherwise have expired during that two-to-ten business day period. If any Exchange Offer is extended with respect to any series of Existing Notes, we will also extend any Exchange Offers for all series having a lower acceptance priority level to such “new” Expiration Time. Any increase in the consideration offered to holders of a series of Existing Notes pursuant to the Exchange Offers will be paid to all holders whose Existing Notes of such series have been previously tendered and not validly withdrawn.
In addition, if we extend the Early Exchange Time, we may in our discretion extend it with respect to only one or more Exchange Offers or series of Existing Notes and not all.
We will promptly announce any extension, amendment or termination of an Exchange Offer by issuing a press release. We will announce any extension of the Pricing Time and/or Expiration Time no later than 9:00 a.m., New York City time, on the first business day after the previously scheduled Pricing Time and/or Expiration Time, as applicable. We have no other obligation to publish, advertise or otherwise communicate any information about any extension, amendment or termination.
Settlement Date
We will deliver the New Notes and pay cash amounts with respect to the Exchange Offers on the Settlement Date. The “Settlement Date” will promptly follow the Expiration Time and is expected to be March 17, 2021, which is the second business day following the Expiration Time. We will not be obligatedsubject to deliver Newrestrictions on transfer or to any increase in annual interest rate for failure to comply with the Registration Rights Agreement.
The Registered Notes or pay any cash amounts unlesswill evidence the Exchange Offers are consummated.
Conditionssame debt as the Restricted Notes. The Registered Notes will be issued under and entitled to the Exchange Offers
Notwithstanding any other provisionsbenefits of the Exchange Offers, or any extension of the Exchange Offers, we will not be required to accept any Existing Notes for exchange, exchange any New Notes for Existing Notes or pay any cash amounts, and we may terminate any Exchange Offer or, at our option, modify, extend or otherwise amend an Exchange Offer if any of the following conditions have not been satisfied or waived on or before the Expiration Time (unless stated otherwise):
1. the registration statement of which this prospectus forms a part having been declared effective by the SEC on or prior to the Expiration Time and remaining effective on the Settlement Date;
2. as of the Pricing Time, the combination of the yield of the New Notes and the Total Exchange Consideration or Exchange Consideration for the applicable series of Existing Notes would result in the New Notes and such Existing Notes not being treated as “substantially different” under ASC 470-50 (the “Accounting Treatment Condition”);
3. we issue at least (a) $3,000,000,000 aggregate principal amount of New 2052 Notes and (b) $750,000,000 aggregate principal amount of New 2062 Notes;
4. the Yield Condition (for any applicable series of Existing Notes);
5. no action or event shall have occurred, been threatened, no action shall have been taken, and no statute, rule, regulation, judgment, order, stay, decree, injunction or regulatory comments shall have been issued, promulgated, enacted, entered, enforced or deemed to be applicable to such Exchange Offer or the exchange of Existing Notes for New Notes under such Exchange Offer by or before any court or governmental regulatory or administrative agency, authority, instrumentality or tribunal, including, without limitation, taxing authorities,same Indenture that either:
(a) challenges the making of such Exchange Offer or the exchange of Existing Notes for New Notes and cash under such Exchange Offer or might, directly or indirectly, be reasonably expected to prohibit, prevent, restrict or delay the scheduled Pricing Time or the consummation of, or might otherwise adversely affect in any manner, such Pricing Time, Exchange Offer or the exchange of Existing Notes for New Notes and cash under such Exchange Offer; or
(b) in our reasonable judgment, could materially adversely affect our (or our subsidiaries’) business, condition (financial or otherwise), income, operations, properties, assets, liabilities or
prospects or impair the contemplated benefits to us of such Exchange Offer, the exchange of Existing Notes for New Notes under such Exchange Offer or the delivery of any cash amounts;
6. nothing has occurred or may occur that would or might, in our reasonable judgment, be expected to prohibit, prevent, restrict or delay such Exchange Offer or delay the schedule Pricing Time or impair our ability to realize the anticipated benefits of such Exchange Offer;
7. there shall not have occurred (a) any general suspension of or limitation on trading in securities in the United States securities or financial markets, whether or not mandatory, (b) any material adverse change in the prices of the Existing Notes, (c) a material impairment in the general trading market for debt securities, (d) a declaration of a banking moratorium or any suspension of payments in respect of banks by federal or state authorities in the United States, whether or not mandatory, (e) a material escalation or commencement of a war, armed hostilities, a terrorist act or other national or international calamity directly or indirectly relating to the United States, if the effect of any such event, in the Company’s reasonable judgment, makes it impracticable or inadvisable to proceed with such Exchange Offer, (f) any limitation, whether or not mandatory, by any governmental authority on, or other event in the Company’s reasonable judgment, having a reasonable likelihood of affecting, the extension of credit by banks or other lending institutions in the United States, (g) any material adverse change in the securities or financial markets in the United States generally or (h) in the case of any of the foregoing existing at the time of the commencement of the Exchange Offers, a material acceleration or worsening thereof; and
8. the applicable trustee under the indenture for the Existing Notes that are the subject of such Exchange Offer and the trustee with respect to the New Notes to be issued in the Exchange Offers, shall not have been directed by any holders of Existing Notes subject to such Exchange Offer to object in any respect to, nor take any action that could, in our reasonable judgment, adversely affect the consummation of such Exchange Offer or the exchange of Existing Notes for New Notes under such Exchange Offer, nor shall the any such trustee have taken any action that challenges the validity or effectiveness of the procedures used by us in making such Exchange Offer, the exchange of Existing Notes for New Notes under such Exchange Offer or the delivery of any cash amounts.
The Exchange Offer for any particular series of Existing Notes is further subject to the condition that acceptance of validly tendered series of Existing Notes with a higher acceptance priority level would not result inauthorized the issuance of the New 2052 Notes and 2062 Notes in excess of the New 2052 Notes Issue Cap or the New 2062 Notes Issue Cap, as applicable.
The Yield Condition
Notwithstanding any other provision in this prospectus to the contrary, if at the Pricing Time, the yield of the 30-year Reference UST Security, as set forth in the table below with respect to any series of Existing Notes, is less than the applicable minimum yield or is greater than the applicable maximum yield, to the extent such yield is specified in the table below, then we will not be obligated to accept for exchange, or issue the applicable series of New Notes in exchange for, any Existing Notes of such series tendered in the Exchange Offers.
Title of Security | Reference UST Security | Minimum Yield | Maximum Yield | |||||||||
Pool 1 Notes | ||||||||||||
4.875% Notes due 2043 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
4.450% Notes due 2045 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
4.250% Notes due 2047 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
5.300% Notes due 2041 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
5.200% Notes due 2039 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
4.500% Notes due 2040 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
3.700% Notes due 2046 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
3.750% Notes due 2043 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
3.750% Notes due 2045 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
3.500% Notes due 2042 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
4.100% Notes due 2037 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
4.200% Notes due 2035 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
3.450% Notes due 2036 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
3.500% Notes due 2035 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
Pool 2 Notes | ||||||||||||
3.950% Notes due 2056 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
4.750% Notes due 2055 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
4.500% Notes due 2057 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % | |||||||
4.000% Notes due 2055 | 1.625% due November 15, 2050 | 1.00 | % | 2.40 | % |
The Accounting Treatment Condition and the Yield Condition have been satisfied forRestricted Notes. Consequently, each series of ExistingRegistered Notes subject to the Exchange Offers.
The foregoing conditions are for our sole benefit and may be asserted or waived by us, in whole or in part, on a series by series basis, in our absolute discretion, except as described below. Any determination made by us concerning an event, development or circumstance described or referred to above will be conclusive and binding, subject to challenge in a court of competent jurisdiction.
If any of the foregoing conditions are not satisfied, we may, on a series by series basis, at any time prior to the Expiration Time:
terminate such Exchange Offer and return all tendered Existing Notes subject to such Exchange Offer to the respective tendering holders;
modify, extend or otherwise amend such Exchange Offer and retain all tendered Existing Notes subject to such Exchange Offer until the Expiration Time, as extended, subject, however, to the withdrawal rights of holders; or
waive the unsatisfied conditions with respect to such Exchange Offer, except for the condition that the registration statement of which this prospectus forms a part has been declared effective by the SEC on or prior to the Expiration Time and remains effective on the Settlement Date, and accept all Existing Notes (subject to proration and the priorities described herein) tendered and not previously validly withdrawn pursuant to such Exchange Offer.
Additional Purchases of Existing Notes
We reserve the right, in our absolute discretion, to purchase or make offers to purchase any Existing Notes that remain outstanding subsequent to the Expiration Time and, to the extent permitted by applicable law, to purchase Existing Notes in the open market, in privately negotiated transactions or otherwise. The terms of any such purchases or offers could differ from the terms of the Exchange Offers. Any purchase or offer to purchase will be made in accordance with applicable law.
Certain Consequences to Holders of Existing Notes Not Tendering in the Exchange Offers
The following considerations, in addition to the other information described elsewhere herein or incorporated by reference herein, should be carefully considered by each holder of Existing Notes before deciding whether to tender Existing Notes pursuant to the Exchange Offers.
Limited Trading Market
Consummation of an Exchange Offer may have adverse consequences to holders of Existing Notes that are subject to such Exchange Offer who elect not to tender their Existing Notes in such Exchange Offer. In particular, the trading market for such Existingcorresponding Restricted Notes that are not exchanged could become more limited thanin the existing trading marketapplicable exchange offer will be treated as a single series of debt securities under the Indenture for such Existing Notes and could cease to exist altogether dueall purposes of the Indenture, along with any additional notes of any applicable series issued pursuant to the reductionIndenture.
The exchange offers are not conditioned upon any minimum aggregate principal amount of Registered Notes being tendered for exchange. None of the exchange offers is conditioned on the consummation of any of the other exchange offers.
There will be no fixed record date for determining registered holders of Restricted Notes entitled to participate in the amount of such Existing Notes outstanding upon consummation of such Exchange Offer. Becauseexchange offers.
We intend to conduct the exchange offers in accordance with the provisions of the acceptance priority levels, it is more likely that a reduction inRegistration Rights Agreement, the principal amount outstanding could occur with respect to a seriesapplicable requirements of Existing Notes having a higher priority acceptance level. A more limited trading market for a particular series of Existing Notes might adversely affect the liquidity, market priceSecurities Act and price volatility of such series of Existing Notes.
Treatment of Existing Notes Not Tendered in the Exchange Offers
Existing Notes not tenderedAct, and purchased in the Exchange Offers will remain outstanding. The termsrules and conditions governingregulations of the Existing Notes, will remain unchanged. No amendments to the indenture governing the Existing Notes are being sought. From time to time in the future, we or our subsidiaries may acquire ExistingSEC. Restricted Notes that are not tendered for exchange in the Exchange Offers through open market purchases, privately negotiated transactions, tender offers, exchange offers or otherwise, upon such termswill remain outstanding and at such prices as we or they may determine, which maycontinue to accrue interest and will be more or less than the price to be paid pursuantentitled to the Exchange Offersrights and could be for cash or other consideration. Alternatively, we may repurchase any or all of the Existing Notes not purchased pursuant to the Exchange Offers at any time. We cannot assure you as to which, if any, of these alternatives (or combinations thereof) we or our subsidiaries may choose to pursue in the future.
Effect of Tender
Any tender by a holder, and our subsequent acceptance of that tender, of Existing Notes will constitute a binding agreement between that holder and us upon the terms and subject to the conditions of the applicable Exchange Offer described in this prospectus. The participation in an Exchange Offer by a tendering holder will constitute the agreement by that holder to deliver good and marketable title to the tendered Existing Notes, free and clear of any and all liens, restrictions, charges, pledges, security interests, encumbrances or rights of any kind of third parties.
Representations, Warranties and Covenants of Holders of Existing Notes
By tendering Existing Notes through the submission of an electronic acceptance instruction in accordance with the requirements of ATOP, each holder of Existing Notes, or the beneficial holder of Existing Notes on behalf of which the holder has tendered, will, subject to that holder’s ability to withdraw its tender, and subject to the terms and conditions of the applicable Exchange Offer generally, be deemed to represent, warrant, agree and undertake to:
1. irrevocably sell, assign and transfer to or upon our order or the order of our nominee all right, title and interest in and to, and any and all claims in respect of or arising or having arisen as a result of the holder’s status as a holder of, all Existing Notes tendered thereby,benefits such that thereafter the holder
shallholders have no contractual or other rights or claims in law or equity against us or any fiduciary, trustee, fiscal agent or other person connected with the Existing Notes arising under, from or in connection with those Existing Notes;
2. waive any and all rights with respect to the Existing Notes tendered thereby, including, without limitation, any existing or past defaults and their consequences in respect of those Existing Notes; and
3. release and discharge us and the trustee with respect to the indenture for the Existing Notes from any and all claims that the holder may have, now or in the future, arising out of or related to the Existing Notes tendered thereby, including, without limitation, any claims that the holder is entitled to receive additional principal or interest payments with respect to the Existing Notes tendered thereby, other than accrued and unpaid interest on the Existing Notes or as otherwise expressly provided in this prospectus, or to participate in any redemption or defeasance of the Existing Notes tendered thereby.
In addition, for each holder of Existing Notes tendered in an Exchange Offer, the submission of an electronic acceptance instruction in accordance with the requirements of ATOP will be deemed to represent, warrant and agree that:
1. it has received this prospectus;
2. it is the beneficial owner (as defined below) of, or a duly authorized representative of one or more beneficial owners of, the Existing Notes tendered thereby, and it has full power and authority to tender, sell, assign and transfer the Existing Notes tendered thereby;
3. the Existing Notes being tendered thereby were owned as of the date of tender, free and clear of any liens, charges, claims, encumbrances, interests and restrictions of any kind, and we will acquire good, indefeasible and unencumbered title to those Existing Notes, free and clear of all liens, charges, claims, encumbrances, interests and restrictions of any kind, when we accept the same;
4. it will not sell, pledge, hypothecate or otherwise encumber or transfer any Existing Notes tendered thereby from the date of tender, and any purported sale, pledge, hypothecation or other encumbrance or transfer will be void and of no effect;
5. it is not from or located in any jurisdiction where the making or acceptance of the Exchange Offers does not comply with the laws of that jurisdiction and is otherwise a person to whom it is lawful to make available this prospectus or to make the applicable Exchange Offer in accordance with applicable laws;
6. it is not resident and/or located in the United Kingdom or, if resident and/or located in the United Kingdom, it is: (a) a person falling within the definition of investment professionals as defined in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Order”); (b) a person falling within Article 43(2) or Articles 49(2)(a) to (d) of the Order; or (c) a person to whom this confidential offering memorandum and other documents or materials relating to the New Notes may otherwise lawfully be communicated in accordance with the Order;
7. the New Notes are not intended to be offered, sold or otherwise made available to and are not being offered, sold or otherwise made available to any retail investor in the European Economic Area (the “EEA”). 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 the EU Directive on Markets in Financial Instruments (2014/65/EU) (as amended, “MiFID II”); (ii) a customer within the meaning of Directive (EU) 2016/97 (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 New Notes or otherwise making them available to retail investors in the EEA has been prepared and therefore offering or selling the New Notes or otherwise making them available to any retail investor in the EEA may be unlawful. This prospectus has been prepared on the basis that any offer of New Notes in any Member State of the EEA will be made pursuant to an exemption under the Prospectus Regulation from the requirement to publish a prospectus for offers of notes. This prospectus is not a prospectus for the purposes of the Prospectus Regulation;Indenture.
8. the New Notes are not intended to be offered, sold or otherwise made available to and are not being offered, sold or otherwise made available to any retail investor 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 (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or (ii) a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (as amended, “FSMA”) and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Article 2 of the Prospectus Regulation as it forms part of domestic law by virtue of the EUWA (as amended, the “UK Prospectus Regulation”). Consequently no key information document required by the PRIIPs Regulation as it forms part of domestic law by virtue of the EUWA (as amended, the “UK PRIIPs Regulation”) for offering or selling the New Notes or otherwise making them available to retail investors in the UK has been prepared and therefore offering or selling the New Notes or otherwise making them available to any retail investor in the UK may be unlawful under the UK PRIIPs Regulation. This prospectus has been prepared on the basis that any offer of New Notes in the UK will be made pursuant to an exemption under the UK Prospectus Regulation from the requirement to publish a prospectus for offers of notes. This prospectus is not a prospectus for the purposes of the UK Prospectus Regulation;
9. if it is, located or resident, in Canada, such holder is an accredited investor, as defined in National Instrument 45-106Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and is a permitted client as defined in National Instrument 31-103Registration Requirements, Exemptions andOngoing Registrant Obligations, and such holder has completed, signed and submitted, or shall forthwith complete, sign and submit, a Canadian Eligibility Form in the form approved by the Company and in accordance with the procedures established by the Company;
10. in evaluating the applicable Exchange Offer and in making its decision whether to participate in such Exchange Offer by the tender of Existing Notes, it has made its own independent appraisal of the matters referred to in this prospectus and in any related communications;
11. the tender of Existing Notes shall constitute an undertaking to execute any further documents and give any further assurances that may be required in connection with any of the foregoing, in each case on and subject to the terms and conditions described or referred to in this prospectus;
12. the submission of an electronic acceptance instruction in accordance with the requirements of ATOP shall, subject to a holder’s ability to withdraw its tender on or prior to the Expiration Time, and subject to the terms and conditions of the applicable Exchange Offer, constitute the irrevocable appointment of the Exchange Agent as its attorney and agent and an irrevocable instruction to that attorney and agent to complete and execute all or any forms of transfer and other documents at the discretion of that attorney and agent in relation to the Existing Notes tendered thereby in favor of us or any other person or persons as we may direct and to deliver those forms of transfer and other documents in the attorney’s and agent’s discretion and the certificates and other documents of title
relating to the registration of Existing Notes and to execute all other documents and to do all other acts and things as may be in the opinion of that attorney or agent necessary or expedient for the purpose of, or in connection with, the acceptance of such Exchange Offer, and to vest in us or our nominees those Existing Notes;
13. it has a net long position in the Existing Notes being tendered pursuant to the applicable Exchange Offer within the meaning of Rule 14e-4 under the Exchange Act, and the tender of such Existing Notes complies with Rule 14e-4;
14. it understands that tenders with respect to a series of Existing Notes may be withdrawn by written notice of withdrawal or a properly transmitted “Request Message” through ATOP received by the Exchange Agent at any time on or prior to the Expiration Time. In the event of a termination of the Exchange Offer with respect to such series of Existing Notes, the Existing Notes tendered pursuant to such Exchange Offer will be credited to the account maintained at DTC from which such Existing Notes were delivered;
15. it understands that tenders of Existing Notes pursuant to any of the procedures described in this prospectus and acceptance of such Existing Notes by the Company will constitute a binding agreement between holders and the Company upon the terms and subject to the conditions of the Exchange Offers. For purposes of the Exchange Offers, it understands that validly tendered Existing NotesWe will be deemed to have been accepted byfor exchange properly tendered Restricted Notes when we have given written notice of the acceptance to the exchange agent. The exchange agent will act as agent for the tendering holders for the purposes of receiving the Registered Notes from the Company if, as and whendelivering the Company gives written notice thereofRegistered Notes to the Exchange Agent;
16. it has agreedsuch holders. Subject to all of the terms of the Exchange Offers. All authority conferredexchange offers and the Registration Rights Agreement, we expressly reserve the right to amend or agreed to be conferred shall not be affected by, and shall survive, the death or incapacity of the holder, and any obligation of the holder hereunder shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal and legal representatives, successors and assigns of the holder;
17. it acknowledges that on submitting the required electronic instructions to DTC, it is deemed to agree that the relevant Existing Notes will be blocked in the relevant clearing system with effect from the date the relevant tender of Existing Notes is made until the earlier of (i) the time of settlement on the Settlement Date and (ii) the date on which the Exchange Offers of the relevant Existing Notes are terminated by the Company or on which such tender is withdrawn or revoked, in each case in accordance with the terms of this prospectus;
18. it recognizes that under certain circumstances set forth in this prospectus, the Company may terminate or amend the Exchange Offers with respect to one or more series of Existing Notes or may postpone the acceptance for exchange of, or the exchange for, Existing Notes tendered or may not be required to exchange any of the Existingexchange offers, and to not accept for exchange any Restricted Notes tendered thereby;
19. it understands that the delivery and surrender of any Existing Notes is not effective, and the risk of loss of the Existing Notes does not pass to the Exchange Agent, until receipt by the Exchange Agent of an Agent’s Message (as defined below) properly completed and duly executed, together with all accompanying evidences of authority and any other required documents in form satisfactory to the Company. All questions as to form of all documents and the validity (including time of receipt) and acceptance of tenders and withdrawals of Existing Notes will be determined by the Company, in its sole discretion, which determination shall be final and binding, subject to holders of Existing Notes disputing such determination in a court of competent jurisdiction; and
20. it has observed the laws of all relevant jurisdictions, obtained all requisite governmental, exchange control or other required consents, complied with all requisite formalities and paid any issue, transfer or other taxes or requisite payments due from such holder, and not otherwise required to be
paid by the Company pursuant to the Exchange Offers, in each respect in connection with any offer or acceptance, in any jurisdiction and that such holder has not taken or omitted to take any action in breach of the terms of the Exchange Offers or which will or may result in the Company or any other person acting in breach of the legal or regulatory requirements of any such jurisdiction in connection with the Exchange Offers or tender of Existing Notes in connection therewith.
The representations, warranties and agreements of a holder tendering Existing Notes will be deemed to be repeated and reconfirmed on and as of the Early Exchange Time, the Expiration Time and the Settlement Date. For purposes of this prospectus, the “beneficial owner” of any Existing Notes means any holder that exercises investment discretion with respect to those Existing Notes.
Absence of Appraisal and Dissenters’ Rights
previously accepted for exchange. Holders of the ExistingRestricted Notes do not have any appraisal or dissenters’ rights in connection with the Exchange Offers.exchange offers
AcceptanceWe will pay all charges and expenses, other than those brokerage commissions or fees or transfer or other taxes described below, in connection with the exchange offers. It is important that you read the section titled “—Fees and Expenses” below for more details regarding fees and expenses incurred in the exchange offers.
Expiration Time; Extensions; Amendments
Each of Existing Notes for Exchange and Deliverythe exchange offers will expire at 5:00 p.m., New York City time, on , 2024, unless, in our sole discretion, we extend the expiration time of New Notessuch exchange offer.
OnIn order to extend the Settlement Date,exchange offers, we will notify the New Notes to be issuedexchange agent in writing of any extension of such exchange for Existingoffer. We will notify registered holders of the applicable Restricted Notes in writing or by public announcement of the Exchange Offers,extension, if consummated, will be delivered in book-entry form, and paymentany, of any cash amounts will be madethe expiration time by deposit of funds with DTC, Clearstream or Euroclear, as applicable, which will transmit those payments to tendering holders.no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration time.
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We expressly reserve the right, in our sole discretion, discretion:
to (1)delay accepting for exchange any Restricted Notes due to an extension of the exchange offers;
• | to extend the exchange offers or to terminate the exchange offers and to refuse to accept Restricted Notes not previously accepted if any of the conditions set forth under “—Conditions to the Exchange Offers” have not been satisfied by giving written notice of such extension or termination to the exchange agent; or |
subject to the terms of the Registration Rights Agreement, to amend the terms of the exchange offers in any manner.
Any such delay in acceptance, extension or termination will be followed as promptly as practicable by written notice or public announcement thereof to the registered holders of Restricted Notes. If we amend an Exchange Offer at any time, (2) waive any of the conditionsexchange offers in a manner that we determine to an Exchange Offer or (3) terminate an Exchange Offerconstitute a material change, we will promptly disclose such amendment in those situationsa manner reasonably calculated to inform the holders of the relevant Restricted Notes of such amendment.
Without limiting the manner in which we may choose to make public announcements of any delay in acceptance, extension, termination or amendment of any of the exchange offers, we shall have no obligation to publish, advertise or otherwise communicate any such public announcement other than by issuing a conditiontimely press release to an Exchange Offer is not satisfied or waived priora financial news service. If we make any material change to any of the exchange offers, we will disclose this change by means of a post-effective amendment to the Expiration Time.
registration statement that includes this prospectus and will distribute an amended or supplemented prospectus to each registered holder of relevant Restricted Notes. In addition, we will extend the relevant exchange offer(s) for an additional five to ten business days as required by the Exchange Act, depending on the significance of the amendment, if the exchange offer(s) would otherwise expire during that period. We will promptly notify the exchange agent by written notice of any delay in acceptance, extension, termination or amendment of any of the exchange offers.
Conditions to the Exchange Offers
Notwithstanding any other terms of the exchange offers, we will not be deemedrequired to accept Existingfor exchange, or exchange any Registered Notes that have been validly tendered by holdersfor, any Restricted Notes, and that have not been validly withdrawnwe may terminate any of the exchange offers as provided in this prospectus (subjectbefore accepting any Restricted Notes for exchange, if:
the exchange offers would violate any applicable law, rule, regulation or applicable interpretations of the staff of the SEC; or
any action or proceeding has been instituted or threatened in any court or by or before any governmental agency with respect to the exchange offers which, in our judgment, could reasonably be expected to impair our ability to proceed with the exchange offers.
In addition, we will not be obligated to accept for exchange the Restricted Notes of any holder that has not been deemed to have made the representations described under “—Purpose and Effect of the Exchange Offers,” “—Procedures for Tendering the Restricted Notes” and “Plan of Distribution,” and such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to make available to it an appropriate form for registration of the Registered Notes under the Securities Act.
We expressly reserve the right, at any time or at various times, to extend the period of time during which any of the exchange offers are open. Consequently, we may delay acceptance priority levels of each series of Existingany Restricted Notes and the New Issue Cap) when, and if, we give oral orby giving written notice (including by public announcement) of acceptancesuch extension to the Exchange Agent. Following receiptregistered holders of that notice by the Exchange Agent andrelevant Restricted Notes as promptly as practicable. During any such extensions, all relevant Restricted Notes previously tendered will remain subject to the termsapplicable exchange offers, and conditions of the Exchange Offers, delivery of the Newwe may accept them for exchange unless they have been previously withdrawn. We will return any Restricted Notes and any cash amounts will be made by the Exchange Agent on the Settlement Date. The Exchange Agent will act as agentthat we do not accept for tendering holders of Existing Notes for the purpose of receiving Existing Notes and transmitting New Notes and cash as of the Settlement Date. If any tendered Existing Notes are not acceptedexchange for any reason described in the terms and conditions of the Exchange Offers, such unaccepted Existing Notes will be returned without expense to the tendering holdersholder promptly after the expiration or termination of the Exchange Offers.exchange offers.
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We expressly reserve the right to amend or terminate any of the exchange offers, and to reject for exchange any Restricted Notes not previously accepted for exchange, upon the occurrence of any of the conditions of the exchange offers specified above. We will give written notice or public announcement of any extension, amendment, non-acceptance or termination to the registered holders of the relevant Restricted Notes as promptly as practicable. In the case of any extension, such notice will be issued no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration time.
These conditions are for our sole benefit, and we may assert them regardless of the circumstances that may give rise to them or waive them in whole or in part at any or at various times in our sole discretion; provided that any waiver of a condition of tender with respect to any of the exchange offers will apply to all of the relevant, outstanding Restricted Notes and not only to particular relevant Restricted Notes. If we fail at any time to exercise any of the foregoing rights, that failure will not constitute a waiver of such right. Each such right will be deemed an ongoing right that we may assert at any time or at various times.
In addition, we will not accept for exchange any Restricted Notes tendered, and will not issue Registered Notes in exchange for any such Restricted Notes, if at such time any stop order will be threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the Indenture under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
Procedures for Tendering the Restricted Notes
If you wish to participate in the Exchange Offersexchange offers and your ExistingRestricted Notes are held by a custodial entity such as a bank, broker, dealer, trust company or other nominee, you must instruct that custodial entity to tender your ExistingRestricted Notes on your behalf pursuant to the procedures of that custodial entity. Please ensure you contact your custodial entity as soon as possible to give them sufficient time to meet your requested deadline. Beneficial owners are urged to appropriately instruct their bank, broker, custodian or other nominee at least five business days prior to the Early Exchange Time or the Expiration Time,expiration time, as the case may be, in order to allow adequate processing time for their instruction.
To participate in the Exchange Offers,exchange offers, you must comply with the ATOP procedures for book-entry transfer described below prior to the Expiration Time or, in order to receive the Early Exchange
Premium, on or before the Early Exchange Time.expiration time. We have not provided guaranteed delivery procedures in conjunction with the Exchange Offers.exchange offers. No letter of transmittal will be used in connection with the Exchange Offers.exchange offers. The valid electronic transmission of acceptance through ATOP shall constitute delivery of your ExistingRestricted Notes in connection with the Exchange Offers.exchange offers.
If you wish to tender ExistingRestricted Notes held on your behalf by a nominee with DTC, you must:
inform your nominee of your interest in tendering your ExistingRestricted Notes pursuant to the applicable Exchange Offer;exchange offer; and
instruct your nominee to tender all ExistingRestricted Notes you wish to be tendered in the Exchange Offersexchange offers in accordance with the procedures described below.
For a holder to validly tender ExistingRestricted Notes pursuant to the Exchange Offers,exchange offers, an Agent’s Message (as defined below) transmitted through DTC must be received by the Exchange Agentexchange agent at or prior to the Expiration Time,expiration time, and the ExistingRestricted Notes must be transferred pursuant to the procedures for book-entry transfer described below and a Book-Entry Confirmation (as defined below) must be received by the Information Agent,exchange agent, in each case at or prior to the Expiration Time.expiration time. In all cases, the exchange of ExistingRestricted Notes tendered and accepted for exchange pursuant to the Exchange Offersexchange offers will be made only after timely receipt by the Exchange Agentexchange agent of:
a Book-Entry Confirmation with respect to such Existing Notes; and
an Agent’s Message transmitted through DTC.
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Any acceptance of an Agent’s Message transmitted through ATOP is at the election and risk of the person transmitting such Agent’s Message and delivery will be deemed made only when actually received by the Exchange Agent.exchange agent. No documents should be sent to us the trustee or the Dealer Managers.trustee.
The Exchange Agentexchange agent will establish an account with respect to each series of ExistingRestricted Notes at DTC for purposes of the Exchange Offers,exchange offers, and any financial institution that is a nominee in DTC, including Euroclear and Clearstream, may make book-entry delivery of ExistingRestricted Notes by causing DTC to transfer such ExistingRestricted Notes into the Exchange Agent’sexchange agent’s account in accordance with the ATOP procedures for transfer. DTC will then verify the acceptance, execute a book-entry delivery to the Exchange Agent’sexchange agent’s account at DTC and send an Agent’s Message to the Exchange Agent.exchange agent. The Agent’s Message, and any other required documents, must, in any case, be transmitted to and received by the Exchange Agentexchange agent at or prior to the Expiration Time or at or prior to the Early Exchange Timeexpiration time in order to be eligible to receive the Total Exchange Consideration and Exchange Consideration, as applicable.applicable Registered Notes. The confirmation of a book-entry transfer into the Exchange Agent’sexchange agent’s account at DTC as described above is referred to herein as a “Book-Entry Confirmation.” Delivery of documents to DTC or us does not constitute delivery to the Exchange Agent.exchange agent.
The term “Agent’s Message” means a message transmitted by DTC to, and received by, the Exchange Agentexchange agent and forming a part of the Book-Entry Confirmation, which states that DTC has received an express and unconditional acknowledgment from the participant in DTC described in such Agent’s Message, stating (i) the aggregate principal amount of ExistingRestricted Notes that have been tendered by such participant pursuant to the Exchange Offers,exchange offers, (ii) that such participant has received the prospectus and agrees to be bound by the terms of the Exchange Offersexchange offers as described in this prospectus and (iii) that we may enforce such agreement against such participant.
If you are a beneficial owner which holds Existing Notes through Euroclear or Clearstream and wish to tender your Existing Notes, you are encouraged to contact Euroclear and Clearstream directly to ascertain their procedure for tendering ExistingRestricted Notes.
All questions as to the validity, form, eligibility, including time of receipt, and acceptance and withdrawal of tendered ExistingRestricted Notes will be determined by us in our absolute discretion, which determination will be final and binding, subject to holders of ExistingRestricted Notes disputing such determination in a court of competent jurisdiction. We reserve the absolute right to reject any and all tendered ExistingRestricted Notes determined by us not to be in proper form or not to be tendered properly or any tendered ExistingRestricted Notes our acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the right to waive, in our absolute discretion, any defects, irregularities or conditions of tender as to particular ExistingRestricted Notes, whether or not waived in the case of other ExistingRestricted Notes. Our interpretation of the terms and conditions of the Exchange Offers,exchange offers, including the terms and instructions in this prospectus, will be final and binding on all parties, subject to holders of ExistingRestricted Notes disputing such determination in a court of competent jurisdiction. Unless waived, any defects or irregularities in connection with tenders of ExistingRestricted Notes must be cured within the time we determine. Although we intend to notify holders of defects or irregularities with respect to tenders of ExistingRestricted Notes, neither we, nor the Exchange Agent, the Information Agent, the Dealer Managersexchange agent or any other person will be under any duty to give that notification or shall incur any liability for failure to give that notification. Tenders of ExistingRestricted Notes will not be deemed to have been made until any defects or irregularities therein have been cured or waived.
Any holder whose ExistingRestricted Notes have been mutilated, lost, stolen or destroyed will be responsible for obtaining replacement securities or for arranging for indemnification with the trustee of the ExistingRestricted Notes. Holders may contact the Information Agentexchange agent for assistance with these matters.
WithdrawalBy tendering its Restricted Notes in connection with the exchange offers, each tendering holder of TendersRestricted Notes will be deemed to represent, among other things, that:
Tenders submitted
it is not an affiliate of ours or, if an affiliate of ours, will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable in connection with the resale of the Registered Notes;
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the Registered Notes will be acquired in the ordinary course of its business;
it is not participating, does not intend to participate, and has no arrangement or understanding with anyone to participate, in the distribution (within the meaning of the Securities Act) of the Registered Notes; and
• | if such holder is a broker-dealer that will receive Registered Notes for its own account in exchange for Restricted Notes that were acquired as a result of market-making activities or other trading activities, that it will deliver a prospectus (or to the extent permitted by law, make available a prospectus to purchasers) in connection with any resale of such Registered Notes. See “Plan of Distribution.” |
Acceptance of Restricted Notes for Exchange; Delivery of Registered Notes
Upon satisfaction of all of the conditions to the applicable exchange offer, we will accept, promptly after the expiration date, all relevant Restricted Notes validly tendered and not validly withdrawn. We will issue the Registered Notes promptly after the expiration of the applicable exchange offer and acceptance of the relevant Restricted Notes. See “—Conditions to the Exchange Offers may” above. For purposes of the exchange offers, we will be deemed to have accepted validly withdrawntendered Restricted Notes for exchange when, as and if we have given written notice of such acceptance to the exchange agent.
For each Restricted Note accepted for exchange, the holder of the Restricted Note will receive a Registered Note having a principal amount equal to that of the surrendered Restricted Note. Restricted Notes accepted for exchange will cease to accrue interest from and after the date of completion of the exchange offers. Holders of Restricted Notes whose Restricted Notes are accepted for exchange will not receive any payment for accrued interest on the Restricted Notes otherwise payable on any interest payment date, the record date for which occurs on or after completion of the exchange offers and will be deemed to have waived their rights to receive such accrued interest on the Restricted Notes.
In all cases, issuance of Registered Notes for Restricted Notes will be made only after timely receipt by the exchange agent of:
Book-Entry Confirmation of the deposit of the Restricted Notes into the exchange agent’s account at any timethe book-entry transfer facility;
a properly transmitted Agent’s Message; and
all other required documents.
Unaccepted or non-exchanged Restricted Notes will be returned without expense to the tendering holder of the Restricted Notes promptly after the expiration of the applicable exchange offer. In the case of Restricted Notes tendered by book-entry transfer in accordance with the book-entry procedures described below, the non-exchanged Restricted Notes will be returned or recredited promptly after the expiration of the applicable exchange offer.
Book-Entry Transfer
The exchange agent will make a request to establish an account for the Restricted Notes at orDTC for purposes of the exchange offers within two business days after the date of this prospectus. Any financial institution that is a participant in DTC’s systems and is tendering Restricted Notes must make book-entry delivery of the Restricted Notes by causing DTC to transfer those Restricted Notes into the exchange agent’s account at DTC in accordance with DTC’s procedures for transfer, including its ATOP procedures. The participant should transmit its acceptance to DTC prior to 11:595:00 p.m., New York City time, on March 15, 2021, unless extendedthe expiration date. DTC will verify this acceptance, execute a book-entry transfer of the tendered Restricted Notes into the exchange agent’s account at DTC and then send to the exchange agent confirmation of this book-entry transfer, which confirmation must be received prior to 5:00 p.m., New York City time, on the expiration date. The confirmation of this book-entry transfer will include an Agent’s Message confirming that DTC has received an express
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acknowledgment from the participant that the participant has received the prospectus and agrees to be bound by us, but will thereafter be irrevocable exceptthe terms of the exchange offers described in this prospectus and that we may enforce such terms against the participant. Delivery of Registered Notes issued in the limited circumstances where additional withdrawal rights areexchange offers will be effected through book-entry transfer at DTC. However, an Agent’s Message, with any other required documents, must be transmitted to, and received by, law.the exchange agent at its account at DTC prior to 5:00 p.m., New York City time, on the expiration date.
Withdrawal of Tenders
Except as otherwise provided in this prospectus, holders of Restricted Notes may withdraw (and resubmit) their tenders at any time prior to the expiration of the applicable exchange offers. For a withdrawal of a tender to be effective, the exchange agent must receive a written or facsimile transmission notice of withdrawal at one of the addresses set forth below under “—Exchange Agent,” or a properly transmitted “Request Message” throughthe holder must comply with the appropriate procedure of DTC’s ATOP system.
Any such notice of withdrawal must specify the name of the person who tendered the Restricted Notes to be receivedwithdrawn, identify the Restricted Notes to be withdrawn (including the principal amount of such Restricted Notes and the CUSIP numbers and total principal amount of such Restricted Notes) and specify the name in which such Restricted Notes were registered if different from that of the withdrawing holder. Any such notice of withdrawal must also be signed by the Exchange Agent priorperson having tendered the Restricted Notes to be withdrawn and be accompanied by any documents of transfer sufficient to permit the Trustee for the Restricted Notes to register the transfer of these notes into the name of the person having made the original tender and withdrawing the tender and, because the Restricted Notes have been tendered through the book-entry procedure, specify the name and number of the participant’s account at DTC to be credited if different than that of the person having tendered the Restricted Notes to be withdrawn.
Any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Restricted Notes and otherwise comply with the procedures of such facility. We will determine all questions as to the Expiration Time. The withdrawal notice must:
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Withdrawal of tenders of Existing Notes may not be rescinded, and any Existing Notes validly withdrawn will thereafter be deemed not to have been validly tendered for exchange for purposes of the Exchange Offers. Validlyexchange offers. Any Restricted Notes that have been tendered for exchange but that are not exchanged for any reason will be credited to an account maintained with DTC for Restricted Notes promptly after withdrawal, rejection of tender or termination of the applicable exchange offer. Properly withdrawn ExistingRestricted Notes may however, be re-tenderedretendered by again following one of the procedures described inunder “—Procedures for Tendering” on or beforeTendering the Expiration Time or, in order to receive the Early Exchange Premium, on or before the Early Exchange Time.
Compliance with “Short Tendering” Rule
It is a violation of Rule 14e-4 (promulgated under the Exchange Act) for a person, directly or indirectly, to tender ExistingRestricted Notes for his own account unless the person so tendering (a) has a net long position equal to or greater than the aggregate principal amount” above at maturity, of such Existing Notes being tendered and (b) will cause such Existing Notes to be delivered in accordance with the terms of the Exchange Offers. Rule 14e-4 provides a similar restriction applicableany time prior to the tender or guarantee of a tender on behalf of another person.
A tender of Existing Notes in the Exchange Offers under any of the procedures described above will constitute a binding agreement between the tendering holder and us with respect to such Exchange Offer upon the terms and subject to the conditions of such Exchange Offer, including the tendering holder’s acceptance of the terms and conditions of such Exchange Offer, as well as the tendering holder’s representation and warranty that (a) such holder has a net long position in such Existing Notes being tendered pursuant to such Exchange Offer within the meaning of Rule 14e-4 under the Exchange Act and (b) the tender of such Existing Notes complies with Rule 14e-4.expiration time.
Exchange Agent; Information Agent
D.F. King & Co., Inc. The Bank of New York Mellon Trust Company, N.A.has been appointed as the Exchange Agent and the Information Agentexchange agent for the Exchange Offers. All correspondence in connection with the Exchange Offersexchange offers. You should be sentdirect questions and requests for assistance or delivered by each holder of Existing Notes, or a beneficial owner’s commercial bank, broker, dealer, trust company or other nominee, to the Exchange Agent at the address listed on the back cover page of this prospectus. Questions concerning tender procedures and requests for additional copies of this prospectus should be directed to the Information Agent atexchange agent addressed as follows:
The Bank of New York Mellon Trust Company, N.A.
By Regular, Registered or Certified Mail;
Hand or Overnight Delivery:
The Bank of New York Mellon Trust Company, N.A.
c/o The Bank of New York Mellon
2322 French Settlement, Bldg 100
Dallas, Texas 75212
Attention: Pamela Adamo
For Confirmation by Telephone:
(315) 414-3317
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Delivery to an address other than as set forth above does not constitute a valid delivery to the addressexchange agent.
Fees and telephone numbers listed on the back cover page of this prospectus or to microsoft@dfking.com. Holders of Existing Notes may also contact their commercial bank, broker, dealer, trust company or other nominee for assistance concerning the Exchange Offers. Expenses
We will pay the Exchange Agent and the Information Agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses.
Dealer Managers
We have retained (i) Morgan Stanley & Co. LLC and Wells Fargo Securities, LLCnot make any payment to serve as the Joint Lead Dealer Managers, (ii) Barclays Capital Inc. and Credit Suisse Securities (USA) LLC to serve as the Senior Co-Dealer Managers and (iii) Academy Securities, Inc., CastleOak Securities, L.P., Drexel Hamilton, LLC, Loop Capital Markets LLC, MFR Securities, Inc., Mischler Financial Group, Inc., Samuel A. Ramirez & Company, Inc. and Siebert Williams Shank & Co., LLC to serve as the Co-Dealer Managers. We will pay the Dealer Managers customary fees forbrokers, dealers or others soliciting acceptances of the Exchange Offers. The obligations of the Dealer Managers to perform their functions are subject to various conditions.exchange offers. We have agreed under the Registration Rights Agreement to pay all expenses incident to the exchange offers other than commissions or concessions of any broker-dealers and we will indemnify and hold harmless the Dealer Managersholders of the Restricted Notes and the Registered Notes (including any broker-dealers, among other persons) against variouscertain liabilities, including various liabilities under the federal securities laws.Securities Act. The Dealer Managers may contact holders of Existing Notescash expenses to be incurred in connection with the exchange offers, including out-of-pocket expenses for the exchange agent, will be paid by mail, telephone, facsimile transmission, personal interviewsthe Company. We will not pay for underwriting discounts and otherwise may request broker dealerscommissions, brokerage commissions and the other nominee holders to forward materialstransfer taxes, if any, relating to the Exchange Offerssale or disposition of Restricted Notes by a holder.
Consequences of Failure to beneficial holders. Questions regardingExchange
Holders of Restricted Notes who do not exchange their Restricted Notes for Registered Notes under the termsexchange offers will remain subject to the restrictions on transfer of such Restricted Notes as set forth in the legend printed on the Restricted Notes as a consequence of the Exchange Offers may be directed toissuance of the Dealer Managers at the addresses and telephone numbers listed on the back cover page of this prospectus. At any given time, the Dealer Managers or their affiliates may trade the ExistingRestricted Notes or other of our securities for their own account or for the accounts of their customers and, accordingly, may hold a long or short position in the Existing Notes. To the extent that the Dealer Managers or their affiliates hold Existing Notes during the Exchange Offers, they may tender such Existing Notes in the Exchange Offers pursuant to the termsexemptions from, or in transactions not subject to, the registration requirements of the Exchange Offers.
From timeIn general, you may not offer or sell the Restricted Notes unless they are registered under the Securities Act or if the offer or sale is exempt from registration under the Securities Act and applicable state securities laws. Except as required by the Registration Rights Agreement, we do not intend to timeregister resales of the Restricted Notes under the Securities Act. Based on interpretations of the SEC staff, Registered Notes issued pursuant to the exchange offers may be offered for resale, resold or otherwise transferred by their holders (other than any such holder that is the Company’s “affiliate” within the meaning of Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the Securities Act; so long as the holders acquired the Registered Notes in the ordinary course of the holders’ business and the Dealer Managersholders have no arrangement or understanding with respect to the distribution of the Registered Notes to be acquired in the exchange offers. Any holder who tenders in the exchange offers for the purpose of participating in a distribution of the Registered Notes could not rely on the applicable interpretations of the SEC and their affiliatesmust comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction.
We do not currently anticipate that we will register under the Securities Act any Restricted Notes that remain outstanding after completion of the exchange offers. See “Risk Factors—Risks Related to the Exchange Offers—You may have provided us and our affiliates with investment banking and other services for customary compensation. The Dealer Managers or their affiliates engage in commercial banking activities with us. One of our directors, Charles W. Scharf, isdifficulty selling the Chief Executive Officer and President of Wells Fargo & Company (the parent of Wells Fargo Securities, LLC)Restricted Notes that you do not exchange.”
Other Fees and ExpensesAccounting Treatment
We will bearrecord the expenses of soliciting tendersRegistered Notes in our accounting records at the same carrying value as the Restricted Notes for which they were exchanged in respect of the Existingoffer made pursuant to this prospectus, as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes in connection with the exchange offers. We will expense the costs of the exchange offers and amortize the remaining unamortized expenses related to the issuance of the Restricted Notes over the term of the Registered Notes. The principal solicitation is being made
Additional Obligations
In the Registration Rights Agreement, we agreed that under certain circumstances we would file a shelf registration statement with the SEC covering resales of notes by electronic communications. Additional solicitations may, however, be made by e-mail, mail, facsimile transmission, telephoneholders thereof if, for any reason, the exchange
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offers are not completed on or in person byprior to January 29, 2025 or if, following such date, the Dealer Managers and the Information Agent, as well as by our officers and other employees and those of our affiliates.
TenderingCompany receives a written request from certain holders of Existingthe Restricted Notes willfor the filing of a shelf registration statement. In such an event, we would be under a continuing obligation to use commercially reasonable efforts to keep the shelf registration statement effective and to provide copies of the latest version of the prospectus contained therein to any broker-dealer that requests copies for use in a resale.
Other
Participation in the exchange offers is voluntary, and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your own decision on what action to take. We may in the future seek to acquire untendered Restricted Notes in the open market or privately negotiated transactions, through subsequent exchange offers or otherwise. We have no present plans to acquire any Restricted Notes that are not be requiredtendered in the exchange offers or to payfile a registration statement to permit resales of any fee or commission to the Dealer Managers. If, however, a tendering holder handles the transaction through its broker, dealer, commercial bank, trust company or other institution, that holder may be required to pay brokerage fees or commissions.untendered Restricted Notes.
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For purposes of this section “Description“Description of the New Notes”Notes,” the terms “we,“Microsoft,” “us”the “Company,” “we,” “us” and “our”“our” refer to Microsoft Corporation (parent company only) and not to any of its subsidiaries. The terms of the NewRegistered Notes will include those stated in ourthe Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended.Act. The following is a summary of the material provisions of ourthe Indenture. Because this is a summary, it may not contain all of the information that is important to you. You should read the Indenture in its entirety. See “Where“Where You Can Find More Information.Information.” Capitalized terms used but not defined in this prospectus have the meanings assigned in the Indenture.
General
The NewRegistered Notes will be issued in twofive series of debt securities under the indenture,Fifteenth Supplemental Indenture, dated as of November 6, 2023 (the “Fifteenth Supplemental Indenture”), to the Indenture, dated as of May 18, 2009 between us and The Bank of New York Mellon Trust Company, N.A.,(the “Base Indenture”; the Base Indenture as trustee, asamended, supplemented or otherwise modified by a supplemental indenture between us and The Bank of New York Mellon Trust Company, N.A., as trustee for the New Notes offered hereby (the “Indenture”Fifteenth Supplemental Indenture, the “Indenture”). The NewRegistered Notes will be our senior unsecured obligations and will rank equally with our other unsecured and unsubordinated debt from time to time outstanding.
The New 2052Registered 2026 Notes initially will be limited to up to $6,250,000,000$762,661,000 aggregate principal amount and the New 2062have a maturity date of September 15, 2026. The Registered 2027 Notes initially will be limited to up to $2,000,000,000$354,793,000 aggregate principal amount. Theamount and have a maturity date of the New 2052June 15, 2027. The Registered 2030 Notes initially will be March 17, 2052limited to up to $448,585,000 aggregate principal amount and thehave a maturity date of the New 2062September 15, 2030. The Registered 2047 Notes initially will be March 17, 2062.limited to up to $394,262,000 aggregate principal amount and have a maturity date of June 15, 2047. The Registered 2050 Notes initially will be limited to up to $1,440,382,000 aggregate principal amount and have a maturity date of September 15, 2050. We may, at any time orand from time to time issue additional NewRegistered Notes of each series of NewRegistered Notes offered hereby without the consent of the holders of that series of NewRegistered Notes, but we will not issue such additional NewRegistered Notes unless (i) they are fungible for U.S. federal income tax purposes with the relevant series of NewRegistered Notes offered hereby.hereby or (ii) they are issued with a separate CUSIP number.
The NewRegistered Notes will be subject to legal defeasance and covenant defeasance as provided below under “—Discharge, Defeasance and Covenant Defeasance.Defeasance.”
The NewRegistered Notes of each series will be issued in a form of one or more fully registered global securities, without coupons, in denominations of $2,000 in principal amount and integral multiples of $1,000 in excess thereof.
The NewRegistered Notes will not benefit from any sinking fund.
Each series of Registered Notes and the corresponding series of Restricted Notes that are not exchanged in the applicable exchange offer will be treated as a single series of debt securities under the Indenture, pursuant to which each series of Restricted Notes were, and the corresponding series of Registered Notes will be, issued, along with any additional notes of any applicable series (collectively with the Registered Notes and the Restricted Notes of such series, the “Notes”) issued pursuant to the Indenture.
Interest and Principal
The NewInterest on each series of Registered Notes will bear interestaccrue from the firstmost recent interest payment date any Newon which interest was paid on the applicable series of Restricted Notes that, in each case, occurs prior to the date such series of Registered Notes are issued (which we expect will be(as applicable to each such series of Registered Notes, the Settlement Date)“Initial Interest Accrual Date”), which was December 15, 2023 in the case of the Registered 2027 Notes and the Registered 2047
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Notes and March 15, 2024 in the case of the Registered 2026 Notes, the Registered 2030 Notes and the Registered 2050 Notes, at a rate per annum equal to (a) the yield, rounded to three decimal places when expressed as a percentage and calculated in accordance with standard market practice, that corresponds to the bid-side price of the 30-year Reference UST Security as of the Pricing Time as displayed on the Bloomberg Government Pricing Monitor page FIT1 (or any recognized quotation source selected by the Company in its sole discretion if such quotation report is not available or is manifestly erroneous) plus (b) a fixed spread of 70 basis points (which translates to a per annum interest rate of 2.921%), in the case of the New 2052Registered 2026 Notes, and 82 basis points (which translates to a per annum interest rate of 3.041%)3.400%, in the case of the New 2062 Notes, in each case, payable semi-annually in arrears on March 1715 and September 1715 of each year, commencing(b) in the case of the Registered 2027 Notes, 3.400%, payable semi-annually in arrears on September 17, 2021, toJune 15 and December 15 of each year, (c) in the personscase of the Registered 2030 Notes, 1.350%, payable semi-annually in whose names the New Notes are registered at the close of businessarrears on the immediately preceding March 215 and September 2, respectively, whether or not that day is a business day.15 of each year, (d) in the case of the Registered 2047 Notes, 4.500%, payable semi-annually in arrears on June 15 and December 15 of each year, and (e) in the case of the Registered 2050 Notes, 2.500%, payable semi-annually in arrears on March 15 and September 15 of each year.
General
We will pay the principal of and interest on each NewRegistered Note to the registered holder in U.S. dollars in immediately available funds. Payment will be made upon presentation of the NewRegistered Notes at the office or agency we maintain for this purpose currently at the trustee’s office located at 400311 South Hope Street,Wacker Drive, Suite 500, Los Angeles, California 90071,6200B, Floor 62, Chicago, Illinois 60606, Attention: Corporate Trust Administration – Microsoft Corporation; provided, however, that payment of interest may be made at our option by check mailed to the registered holder on the record date at such address as shall appear in the security register or by wire transfer of immediately available funds to an account specified in writing by such holder to us and the trustee prior to the relevant record date. Notwithstanding anything to the contrary in this prospectus, so long as the NewRegistered Notes are in book-entry form, we will make payments of principal and interest through the trustee to DTC.
Interest payable on any interest payment date for a series of NewRegistered Notes or the maturity date for that series of NewRegistered Notes will be the amount of interest accrued from, and including, the next preceding interest payment date for that series of NewRegistered Notes in respect of which interest has been paid or duly provided for (or from and including the original issue date,applicable Initial Interest Accrual Date, if no interest has been paid or duly provided for with respect to the NewRegistered Notes of that series) to, but excluding, such interest payment date or maturity date, as the case may be. If any interest payment date falls on a day that is not a business day, the interest payment will be made on the next succeeding business day, and we will not be liable for any additional interest as a result of the delay in payment. If a maturity date falls on a day that is not a business day, the related payment of principal and interest will be made on the next succeeding business day, and no interest will accrue on the amounts so payable for the period from and after such date to the next succeeding business day. The term “business day”“business day” means any day, other than a Saturday or a Sunday, that is not a day on which banking institutions are authorized or obligated by law or executive order to close in New York City.
Ranking
The Registered Notes will be Microsoft’s senior unsecured obligations and will rank equally with Microsoft’s other unsecured and unsubordinated debt from time to time outstanding.
Optional Redemption
At any time priorPrior to September 17, 2051 (in the case of the New 2052 Notes) and September 17, 2061 (in the case of the New 2062 Notes)applicable Par Call Date (as defined below), we will have the right at our option toMicrosoft may redeem the NewRegistered Notes of suchany series of Registered Notes at Microsoft’s option, in whole or in part, at any time orand from time to time, on at least 10 days’ but not more than 60 days’ prior notice mailed to the registered address of each holder of the New Notes of such series to be redeemed, at a redemption price as calculated by us,Microsoft (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1) 100% of the principal amount of the New Notes of such series to be redeemed and (2)of:
(a) the sum of the present values of eachthe remaining scheduled paymentpayments of principal and interest on Newthe Registered Notes of such series to bebeing redeemed (assuming for such purposes the New 2052 Notes and the New 2062 Notes mature on September 17, 2051 and September 17, 2061, respectively) (exclusive of interest accrued to the date of redemption) discounted to the redemption date (assuming that such Registered Notes matured on their applicable Par Call Date), on a semiannualsemi-annual basis (assuming a 360-day year consisting of twelve 30-day months) basis at the applicable Treasury Rate plus 12.5(as defined below) plus: 30 basis points (inin the case of the New 2052 Notes) and 12.5Registered 2026 Notes, 20 basis points (inin the case of the New 2062 Notes).
At any time on or after September 17, 2051 (inRegistered 2027 Notes, 15 basis points in the case of the New 2052 Notes) and September 17, 2061 (inRegistered 2030 Notes, 25 basis points in the case of the New 2062 Notes), we will have
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Registered 2047 Notes and 20 basis points in the case of the Registered 2050 Notes less (b) interest accrued to the date of redemption; and |
100% of the right at our optionprincipal amount of the Registered Notes being redeemed;
plus, in either case, accrued and unpaid interest thereon to the redemption date.
On or after the applicable Par Call Date, Microsoft may redeem the NewRegistered Notes of suchany series at Microsoft’s option, in whole or in part, on at least 10 days’ but not more than 60 days’ prior notice at any time and from time to time at a redemption price equal to 100% of the principal amount of the NewRegistered Notes of such series to be redeemed.
The redemption price for the New Notes will include, in each case,being redeemed plus accrued and unpaid interest on the principal amount of the New Notes to be redeemedthereon to the redemption date.
“Comparable Treasury Issue” meansInstallments of interest on Registered Notes being redeemed that are due and payable on interest payment dates falling on or prior to a redemption date shall be payable on the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparableinterest payment date to the
remaining term holders as of the seriesclose of New Notes to be redeemed that would be utilized, atbusiness on the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturityrelevant regular record date according to the remaining term of the New Notes of such series (assuming for such purposes the New 2052applicable Registered Notes and the New 2062 Notes mature on September 17, 2051 and September 17, 2061, respectively).Indenture.
“Comparable Treasury Price”Par Call Date” means (i) with respect to any redemption date (1) the arithmetic average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations or (2) if we obtain fewer than four such Reference Treasury Dealer Quotations, the arithmetic average of all such quotations for such redemption date.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by us.
“Reference Treasury Dealer” means Morgan Stanley & Co. LLC and Wells Fargo Securities, LLC or their respective affiliates, which are primary U.S. government securities dealers in the United States of America and their respective successors plus two other primary U.S. government securities dealers in the United States of America designated by us; provided, however, that if any of the foregoing ceases to be a primary U.S. government securities dealer in the United States of America (a “Primary Treasury Dealer”), we will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means,Registered 2026 Notes, June 15, 2026, (ii) with respect to each Reference Treasury Dealerthe Registered 2027 Notes, March 15, 2027, (iii) with respect to the Registered 2030 Notes, June 15, 2030, (iv) with respect to the Registered 2047 Notes, December 15, 2046, and any redemption date,(v) with respect to the arithmetic average, as determined by us, of the bid and asked prices for the applicable 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 3:30 p.m. (New York City time) on the third business day preceding such redemption date.Registered 2050 Notes, March 15, 2050.
“Treasury Rate”Rate” means, with respect to any redemption date, the yield determined by Microsoft in accordance with the following two paragraphs:
The Treasury Rate shall be determined by Microsoft after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, Microsoft shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and Microsoft shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 or any successor designation or publication is no longer published, Microsoft shall calculate the Treasury Rate based on the rate per annum equal to the semiannualsemi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or interpolatedwith a maturity (onthat is closest to, the applicable Par Call Date, as applicable. If there is no United States Treasury security maturing on the applicable Par Call Date but there are two or more United States Treasury securities with a day count basis)maturity date equally distant from the applicable Par Call Date, one with a maturity date preceding the applicable Par Call Date and one with a maturity date following the applicable Par Call Date, Microsoft
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shall select the United States Treasury security with a maturity date preceding the applicable Par Call Date. If there are two or more United States Treasury securities maturing on the applicable Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, Microsoft shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time on the applicable date. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable ComparableUnited States Treasury Issue, assuming a price for such Comparable Treasury Issuesecurity shall be based upon the average of the bid and asked prices (expressed as a percentage of its principal amount) equal toat 11:00 a.m., New York City time on the applicable Comparabledate, of such United States Treasury Pricesecurity, and rounded to three decimal places.
Microsoft’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
Notice of redemption will be mailed or electronically delivered at least 10 but not more than 60 days before the redemption date to each holder of record of the Registered Notes to be redeemed at its registered address.
The notice of redemption for the Registered Notes will state, among other things, the amount of Registered Notes to be redeemed, the redemption date, conditions to such redemption date.(if any), the manner in which the redemption price will be calculated and the place or places that payment will be made upon presentation and surrender of notes to be redeemed.
On and after a redemption date, interest will cease to accrue on the New Notes called for redemption or any portion of any series of the notes called for redemption (unless we defaultUnless Microsoft defaults in the payment of the redemption price, and accrued and unpaid interest). On or beforeinterest will cease to accrue on any Registered Notes that have been called for redemption at the redemption date, we will deposit with the trustee money sufficient to pay the redemption price of and (unless the redemption date shall be an interest payment date) accrued and unpaid interest to the redemption date on the New Notes of such series to be redeemed on such date. If less than all of the NewRegistered Notes of a series are to be redeemed, the NewRegistered Notes of such series to be redeemed will be selected pursuantaccording to applicable depositary procedures; provided, however,DTC procedures, in the case of Registered Notes represented by a global note, or by lot, in the case of Registered Notes that no New Notes ofare not represented by a principal amount of $2,000 or less shall be redeemed in part.global note.
Certain Covenants
The Indenture sets forth limited covenants, including the covenant described below, that will apply to each series of NewRegistered Notes. However, these covenants do not, among other things:
limit the amount of indebtedness or lease obligations that may be incurred by us and our subsidiaries;
limit our ability or that of our subsidiaries to issue, assume or guarantee debt secured by liens; or
restrict us from paying dividends or making distributions on our capital stock or purchasing or redeeming our capital stock.
Consolidation, Merger and Sale of Assets
The Indenture provides that we may consolidate with or merge with or into any other person, and may sell, transfer, or lease or convey all or substantially all of our properties and assets to another person; provided that the following conditions are satisfied:
we are the continuing entity, or the resulting, surviving or transferee person (the “Successor”) is a person organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and the Successor (if not us) will expressly assume, by supplemental indenture, all of our obligations under the New Notes and the Indenture;
• | we are the continuing entity, or the resulting, surviving or transferee person (the “Successor”) is a person organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and the Successor (if not us) will expressly assume, by supplemental indenture, all of our obligations under the Registered Notes and the Indenture; |
immediately after giving effect to such transaction, no default or event of default under the Indenture has occurred and is continuing; and
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if requested, the trustee receives from us an officers’ certificate and an opinion of counsel that the merger, consolidation or transfer and such supplemental indenture, as the case may be, complies with the applicable provisions of the Indenture.
If we consolidate or merge with or into any other person or sell, transfer, lease or convey all or substantially all of our properties and assets in accordance with the Indenture, the Successor will be substituted for us in the Indenture, with the same effect as if it had been an original party to the Indenture. As a result, the Successor may exercise our rights and powers under the Indenture, and we will be released from all our liabilities and obligations under the Indenture and under the NewRegistered Notes.
Any substitution of the Successor for us might be deemed for federal income tax purposes to be an exchange of the NewRegistered Notes for “new” NewRegistered Notes, resulting in recognition of gain or loss for such purposes and possibly certain other adverse tax consequences to beneficial owners of the NewRegistered Notes. Holders should consult their own tax advisors regarding the tax consequences of any such substitution.
For purposes of this covenant, “person”“person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity.
Events of Default
Each of the following events are defined in the Indenture as an “event of default” (whatever the reason for such event of default and whether or not it will be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) with respect to the NewRegistered Notes:
(1) default in the payment of any installment of interest on the New Notes for 30 days after becoming due;
(1) | default in the payment of any installment of interest on the Notes for 30 days after becoming due; |
(2) default in the payment of principal of or premium, if any, on the New Notes when it becomes due and payable at its stated maturity, upon optional redemption, upon declaration or otherwise;
(2) | default in the payment of principal of or premium, if any, on the Notes when it becomes due and payable at its stated maturity, upon optional redemption, upon declaration or otherwise; |
(3) default in the deposit of any sinking fund payment, when and as due by the terms of the New Notes;
(3) | default in the deposit of any sinking fund payment, when and as due by the terms of the Notes; |
(4) default in the performance, or breach, of any covenant or agreement of ours in the Indenture with respect to the New Notes (other than as referred to in clause (1), (2) or (3) above), which
(4) | default in the performance, or breach, of any covenant or agreement of ours in the Indenture with respect to the Notes (other than as referred to in clause (1), (2) or (3) above), which continues for a period of 90 days after written notice to us by the trustee or to us and the trustee by the holders of at least 25% in aggregate principal amount of the outstanding Notes; |
continues for a period of 90 days after written notice to us by the trustee or to us and the trustee by the holders of at least 25% in aggregate principal amount of the outstanding New Notes;
(5) we pursuant to or within the meaning of the Bankruptcy Law:
(5) | we pursuant to or within the meaning of the Bankruptcy Law (as defined below): |
commence a voluntary case or proceeding;
consent to the entry of an order for relief against us in an involuntary case or proceeding;
consent to the appointment of a Custodian (as defined below) of us or for all or substantially all of our property;
make a general assignment for the benefit of our creditors;
file a petition in bankruptcy or answer or consent seeking reorganization or relief;
consent to the filing of such petition or the appointment of or taking possession by a Custodian; or
take any comparable action under any foreign laws relating to insolvency; or
(6)
(6) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
is for relief against us in an involuntary case, or adjudicates us insolvent or bankrupt;
appoints a Custodian of us or for all or substantially all of our property; or
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orders the winding-up or liquidation of us (or any similar relief is granted under any foreign laws);
and the order or decree remains unstayed and in effect for 90 days.
“Bankruptcy Law”Law” means Title 11, United States Code or any similar federal or state or foreign law for the relief of debtors.
“Custodian”Custodian” means any custodian, receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
If an event of default with respect to the New Notes of any series (other than an event of default relating to certain events of bankruptcy, insolvency, or reorganization of us) occurs and is continuing, the trustee by notice to us, or the holders of at least 25% in aggregate principal amount of the outstanding New Notes of such series by notice to us and the trustee, may, and the trustee at the request of these holders will, declare the principal of and premium, if any, and accrued and unpaid interest on all the New Notes of such series to be due and payable. Upon such a declaration, such principal, premium and accrued and unpaid interest will be due and payable immediately. If an event of default relating to certain events of bankruptcy, insolvency, or reorganization of us occurs and is continuing, the principal of and premium, if any, and accrued and unpaid interest on the New Notes will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holders.
The holders of not less than a majority in aggregate principal amount of the outstanding New Notes of any series may rescind a declaration of acceleration and its consequences if we have deposited certain sums with the trustee and all events of default with respect to the New Notes of such series, other than the non-payment of the principal or interest which have become due solely by such acceleration, have been cured or waived, as provided in the Indenture.
An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the Indenture.
We are required to furnish the trustee annually a statement by certain of our officers to the effect that, to the best of their knowledge, we are not in default in the fulfillment of any of our obligations under the Indenture or, if there has been a default in the fulfillment of any such obligation, specifying each such default.
No holder of any debt securities of any series will have any right to institute any judicial or other proceeding with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy unless:
(1) an event of default has occurred and is continuing and such holder has given the trustee prior written notice of such continuing event of default with respect to the New Notes;
(1) | an event of default has occurred and is continuing and such holder has given the trustee prior written notice of such continuing event of default with respect to the Notes; |
(2) the holders of not less than 25% of the aggregate principal amount of the outstanding New Notes have requested the trustee to institute proceedings in respect of such event of default;
(2) | the holders of not less than 25% of the aggregate principal amount of the outstanding Notes of such series have requested the trustee to institute proceedings in respect of such event of default; |
(3) the trustee has been offered indemnity reasonably satisfactory to it against its costs, expenses and liabilities in complying with such request;
(3) | the trustee has been offered indemnity reasonably satisfactory to it against its costs, expenses and liabilities in complying with such request; |
(4) the trustee has failed to institute proceedings 60 days after the receipt of such notice, request and offer of indemnity; and
(4) | the trustee has failed to institute proceedings 60 days after the receipt of such notice, request and offer of indemnity; and |
(5) no direction inconsistent with such written request has been given for 60 days by the holders of a majority in aggregate principal amount of the outstanding New Notes.
(5) | no direction inconsistent with such written request has been given for 60 days by the holders of a majority in aggregate principal amount of the outstanding Notes of such series. |
The holders of a majority in aggregate principal amount of outstanding New Notes of a particular series will have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the trustee with respect to the debt securities of that series or exercising any trust or power
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conferred to the trustee, and to waive certain defaults. The Indenture provides that if an event of default occurs and is continuing, the trustee will exercise such of its rights and powers under the Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any of the holders of the debt securities of a series unless they will have offered to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request.
Notwithstanding the foregoing, the holder of the NewRegistered Notes will have an absolute and unconditional right to receive payment of the principal of and premium, if any, and interest on the NewRegistered Notes and to institute suit for the enforcement of payment.
Modification and Waivers
Modification and amendments of the Indenture and the New Notes may be made by us and the trustee with the consent of the holders of not less than a majority in aggregate principal amount of the outstandingNotes of each series of New Notes affected thereby; provided, however, that no such modification or amendment may, without the consent of the holder of each outstanding series of New NotesNote affected thereby:
change the stated maturity of the principal of, or installment of interest on, the New Notes;
reduce the principal amount of the New Notes or reduce the amount of the principal of the New Notes which would be due and payable upon a declaration of acceleration of the maturity thereof or reduce the rate of interest on the New Notes;
reduce any premium payable on the redemption of the New Notes or change the date on which the New Notes may or must be redeemed;
change the coin or currency in which the principal of, premium, if any, or interest on the New Notes is payable;
impair the right of any holder to institute suit for the enforcement of any payment on or after the stated maturity of the New Notes (or, in the case of redemption, on or after the redemption date);
reduce the percentage in principal amount of the outstanding New Notes, the consent of whose holders is required in order to take certain actions;
reduce the requirements for quorum or voting by holders of the New Notes in the Indenture or the New Notes;
modify any of the provisions in the Indenture regarding the waiver of past defaults and the waiver of certain covenants by the holders of the New Notes except to increase any percentage vote required or to provide that certain other provisions of the indentureIndenture cannot be modified or waived without the consent of the holder of the New Notes affected thereby;
make any change that adversely affects the right to convert or exchange the New Notes or decreases the conversion or exchange rate or increases the conversion price of the New Notes, unless such decrease or increase is permitted by the terms of the New Notes; or
modify any of the above provisions.
WeMicrosoft and the Trusteetrustee under the Indenture may, without the consent of any holders, modify or amend the terms of the Indenture and any series of New Notes with respect to the following:
to add to our covenants for the benefit of holders of the New Notes of all or any series or to surrender any right or power conferred upon us;
to evidence the succession of another person to, and the assumption by the successor of our covenants, agreements and obligations under, the Indenture pursuant to the covenant described under “—Covenants—Consolidation, Merger and Sale of Assets”;
• | to evidence the succession of another person to, and the assumption by the successor of our covenants, agreements and obligations under, the Indenture pursuant to the covenant described under “—Certain Covenants—Consolidation, Merger and Sale of Assets”; |
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to add any additional events of default for the benefit of holders of the New Notes of all or any series;
to add one or more guarantees for the benefit of holders of the New Notes;
to secure the New Notes pursuant to the covenants of the Indenture;
to add or appoint a successor or separate trustee or other agent;
to provide for the issuance of additional New Notes of any series;
to establish the form or terms of any series of New Notes as permitted by the Indenture;
to comply with the rules of any applicable securities depository;
to provide for uncertificated New Notes in addition to or in place of certificated New Notes;
to add to, change or eliminate any of the provisions of the Indenture in respect of one or more newly issued series of New Notes;notes;
to cure any ambiguity, omission, defect or inconsistency; or
to change any other provision; provided that the change does not adversely affect the interests of the holders of any series of New Notes in any material respect.
• | to change any other provision; provided that the change does not adversely affect the interests of the holders of any series of Notes in any material respect. |
The holders of at least a majority in aggregate principal amount of any series of the outstanding New Notes may, on behalf of the holders of all New Notes of that series, waive compliance by us with certain restrictive provisions of the Indenture. The holders of not less than a majority in aggregate principal amount of the outstanding New Notes of a series may, on behalf of the holders of all New Notes of that series, waive any past default and its consequences under the Indenture with respect to that series of New Notes, except a default (1) in the payment of principal or premium, if any, or interest on that series of New Notes or (2) in respect of a covenant or provision of the Indenture that cannot be modified or amended without the consent of the holder of each New Note of that series. Upon any such waiver, such default will cease to exist, and any event of default arising therefrom will be deemed to have been cured, for every purpose of the Indenture; however, no such waiver will extend to any subsequent or other default or event of default or impair any rights consequent thereon.
Book-Entry; Delivery and Form; Global Securities
Each series of NewRegistered Notes will be issued in the form of one or more global securities, in definitive, fully registered form without interest coupons, each of which we refer to as a “global security.” Each such global security will be deposited with the trustee as custodian for DTC and registered in the name of a nominee of DTC in New York, New York for the accounts of participants in DTC.
We will not issue certificated securities to you for the NewRegistered Notes you purchase, except in the limited circumstances described below. Each global security will be issued to DTC, which will keep a computerized record of its participants whose clients have purchased and beneficially own NewRegistered Notes of a particular series. Each participant will then keep a record of its clients who have purchased and beneficially own NewRegistered Notes of a particular series. Unless it is exchanged in whole or in part for a certificated security, a global security may not be transferred. DTC, its nominee and their successors may, however, transfer a global security as a whole to one another, and these transfers are required to be recorded on our records or a register to be maintained by the trustee.
DTC has advised us as follows: DTC is a limited-purpose trust company organized under New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold securities of institutions that have accounts with DTC (“participants”participants”) and to facilitate the clearance and settlement of securities transactions among its participants in such securities through electronic
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book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTC’s participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s book-entry system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a participant, whether directly or indirectly.
Ownership of Beneficial Interests
Upon the issuance of each global security, DTC will credit, on its book-entry registration and transfer system, the respective principal amount of the individual beneficial interests represented by the global security to the accounts of participants. Ownership of beneficial interests in each global security will be limited to participants or persons that may hold interests through participants. Beneficial interests in a global security will be shown on, and transfers of beneficial interests in the global
securities will be made only through, records maintained by DTC and its participants. When you purchase notes through the DTC system, the purchases must be made by or through a direct participant, which will receive credit for the notes on DTC’s records. When you actually purchase the NewRegistered Notes, you will become its beneficial owner. Your ownership interest will be recorded only on the direct or indirect participants’ records. DTC will have no knowledge of your individual ownership of the notes.Registered Notes. DTC’s records will show only the identity of the direct participants and the amount of the notesRegistered Notes held by or through them. You will not receive a written confirmation of your purchase or sale or any periodic account statement directly from DTC. You should instead receive these from your direct or indirect participant. As a result, the direct or indirect participants are responsible for keeping accurate account of the holdings of their customers.
So long as DTC or its nominee is the registered holder and owner of a global security, DTC or such nominee, as the case may be, will be considered the sole legal owner of the NewRegistered Notes represented by the global security for all purposes under the Indenture, the NewRegistered Notes and applicable law. Except as set forth below, owners of beneficial interests in a global security will not be entitled to receive certificated NewRegistered Notes and will not be considered to be the owners or holders of any NewRegistered Notes represented by the global security. We understand that under existing industry practice, in the event an owner of a beneficial interest in a global security desires to take any actions that DTC, as the holder of the global security, is entitled to take, DTC would authorize the participants to take such action, and that participants would authorize beneficial owners owning through such participants to take such action or would otherwise act upon the instructions of beneficial owners owning through them. No beneficial owner of an interest in a global security will be able to transfer such interest except in accordance with DTC’s applicable procedures, in addition to those provided for under the Indenture. Because DTC can only act on behalf of participants, who in turn act on behalf of others, the ability of a person having a beneficial interest in a global security to pledge that interest to persons that do not participate in the DTC system, or otherwise to take actions in respect of that interest, may be impaired by the lack of a physical certificate representing that interest.
All payments on the NewRegistered Notes represented by a global security registered in the name of and held by DTC or its nominee will be made to DTC or its nominee, as the case may be, as the registered owner and holder of the global security.
The trustee will wire payments on the NewRegistered Notes to DTC’s nominee. The trustee and we will treat DTC’s nominee as the owner of each global security for all purposes. Accordingly, the trustee, any paying agent and we will have no direct responsibility or liability to pay amounts due on a global security to you or any other beneficial owners in that global security. Any redemption notices will be sent by us directly to DTC, which will, in turn, inform the direct participants (or the indirect participants), which will then contact you as a beneficial holder.
It is DTC’s current practice, upon receipt of any payment of principal, interest, redemption prices, distributions or liquidation amounts, to credit direct participants’ accounts proportionately on the payment date
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based on their holdings. In addition, it is DTC’s current practice to pass through any consenting or voting rights to such participants by using an omnibus proxy. Those participants will, in turn, make payments to and solicit votes from you, the beneficial owner of notes, based on their customary practices. Payments to you will be the responsibility of the participants and not of DTC, the trustee or our company.
Unless and until it is exchanged in whole or in part for certificated NewRegistered Notes, each global security may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC. Transfers between participants in DTC will be effected in the ordinary way in accordance with DTC rules and will be settled in same-day funds.
We expect that DTC will take any action permitted to be taken by a holder of NewRegistered Notes only at the direction of one or more participants to whose account the DTC interests in a global security are credited and only in respect of such portion of the aggregate principal amount of the NewRegistered Notes as to which such participant or participants has or have given such direction. However, if there is an event of default under the NewRegistered Notes, DTC will exchange each global security for certificated NewRegistered Notes, which it will distribute to its participants.
Although we expect that DTC will agree to the foregoing procedures in order to facilitate transfers of interests in each global security among participants of DTC, DTC is under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. None of we, the Dealer Managersdealer managers or the trustee will have any responsibility for the performance or nonperformance by DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
The Indenture provides that the global securities will be exchanged for New Notes in certificated form of like tenor and of an equal principal amount, in authorized denominations in the following limited circumstances:
(i) | DTC notifies us that it is unwilling or unable to continue as depository or if DTC ceases to be eligible under the Indenture and we do not appoint a successor depository within 90 days; |
(ii) | we determine that the |
(iii) | an event of default with respect to the |
These certificated New Notes will be registered in such name or names as DTC will instruct the trustee. It is expected that such instructions may be based upon directions received by DTC from participants with respect to ownership of beneficial interests in global securities.
The information in this section of this prospectus concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but we do not take responsibility for this information.
Euroclear and Clearstream
If the depositary for a global security is DTC, you may hold interests in the global security through Clearstream Banking, société anonyme,, which we refer to as “Clearstream,“Clearstream,” or Euroclear Bank SA/ NV,S.A./N.V., as operator of the Euroclear System, which we refer to as “Euroclear,“Euroclear,” in each case, as a participant in DTC. Euroclear and Clearstream will hold interests, in each case, on behalf of their participants through customers’ securities accounts in the names of Euroclear and Clearstream on the books of their respective depositaries, which in turn will hold such interests in customers’ securities in the depositaries’ names on DTC’s books.
Links have been established among DTC, Clearstream and Euroclear to facilitate the initial issuance of the NewRegistered Notes sold outside of the United States and cross-market transfers of the notes associated with secondary market trading.
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Although DTC, Clearstream and Euroclear have agreed to the procedures described below in order to facilitate transfers, they are under no obligation to perform these procedures, and these procedures may be modified or discontinued at any time.
Clearstream and Euroclear will record the ownership interests of their participants in much the same way as DTC, and DTC will record the total ownership of each of the U.S. agents of Clearstream and Euroclear, as participants in DTC. When NewRegistered Notes are to be transferred from the account of a DTC participant to the account of a Clearstream participant or a Euroclear participant, the purchaser must send instructions to Clearstream or Euroclear through a participant at least one day prior to settlement. Clearstream or Euroclear, as the case may be, will instruct its U.S. agent to receive NewRegistered Notes against payment. After settlement, Clearstream or Euroclear will credit its participant’s account. Credit for the NewRegistered Notes will appear on the next day (European time).
Because settlement is taking place during New York business hours, DTC participants will be able to employ their usual procedures for sending NewRegistered Notes to the relevant U.S. agent acting for the benefit of Clearstream or Euroclear participants. The sale proceeds will be available to the DTC seller on the settlement date. As a result, to the DTC participant, a cross-market transaction will settle no differently than a trade between two DTC participants.
When a Clearstream or Euroclear participant wishes to transfer NewRegistered Notes to a DTC participant, the seller will be required to send instructions to Clearstream or Euroclear through a participant at least one business day prior to settlement. In these cases, Clearstream or Euroclear will instruct its U.S. agent to transfer these NewRegistered Notes against payment for them. The payment will then be reflected in the account of the Clearstream or Euroclear participant the following day, with the proceeds back-valued to the value date, which would be the preceding day, when settlement occurs in New York. If settlement is not completed on the intended value date, that is, the trade fails, proceeds credited to the Clearstream or Euroclear participant’s account will instead be valued as of the actual settlement date.
You should be aware that you will only be able to make and receive deliveries, payments and other communications involving the NewRegistered Notes through Clearstream and Euroclear on the days when those clearing systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States. In addition, because of time zone differences there may be problems with completing transactions involving Clearstream and Euroclear on the same business day as in the United States.
Discharge, Defeasance and Covenant Defeasance
We may discharge certain obligations to holders of the New Notes of a series that have not already been delivered to the trustee for cancellation and that either have become due and payable or will become due and payable within one year (or scheduled for redemption within one year) by depositing with the trustee, in trust, funds in U.S. dollars in an amount sufficient to pay the entire indebtedness including the principal and premium, if any, and interest to the date of such deposit (if the New Notes have become due and payable) or to the maturity thereof or the redemption date of the New Notes of that series, as the case may be. We may direct the trustee to invest such funds in U.S. Treasury securities with a maturity of one year or less or in a money market fund that invests solely in short-term U.S. Treasury securities.
The Indenture provides that we may elect either (1) to defease and be discharged from any and all obligations with respect to the New Notes of a series (except for, among other things, obligations to register the transfer or exchange of the New Notes, to replace temporary or mutilated, destroyed, lost or stolen New Notes, to maintain an office or agency with respect to the New Notes and to hold moneys for payment in trust) (“legal defeasance”defeasance”) or (2) to be released from our obligations to comply with the restrictive covenants under the Indenture, and any omission to comply with such obligations will not constitute a default or an event of default with respect to the New
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Notes of a series and clausesclause (4) and (7) under the heading “Events of Default” in the Indenture will no longer be applied (“covenant defeasance”defeasance”). Legal defeasance or covenant defeasance, as the case may be, will be conditioned
upon, among other things, the irrevocable deposit by us with the trustee, in trust, of an amount in U.S. dollars, or U.S. government obligations, or both, applicable to the New Notes of that series which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal or premium, if any, and interest on the New Notes on the scheduled due dates therefor.
If we effect covenant defeasance with respect to the New Notes of any series, the amount in U.S. dollars, or U.S. government obligations, or both, on deposit with the trustee will be sufficient, in the opinion of a nationally recognized firm of independent accountants, to pay amounts due on the New Notes of that series at the time of the stated maturity but may not be sufficient to pay amounts due on the New Notes of that series at the time of the acceleration resulting from such event of default. However, we would remain liable to make payment of such amounts due at the time of acceleration.
We will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance will not cause the holders of the New Notes of that series to recognize gain or loss for federal income tax purposes. If we elect legal defeasance, that opinion of counsel must be based upon a ruling from the U.S. Internal Revenue Service or a change in law to that effect.
We may exercise our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option.
Trustee, Paying Agent and Security Registrar
The Bank of New York Mellon Trust Company, N.A. is the trustee, paying agent and security registrar for the notesRegistered Notes offered hereby. The Bank of New York Mellon Trust Company, N.A. is a national banking association organized under and governed by the laws of the United States of America, and provides trust services and acts as indenture trustee for numerous corporate securities issuances, including for other series of debt securities of which we are the issuer.
Governing Law
The Indenture is, and the NewRegistered Notes upon issuance will be, governed by and construed in accordance with the laws of the State of New York.
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CERTAINEXCHANGE OFFERS; REGISTRATION RIGHTS
On November 6, 2023, the Company and BofA Securities, Inc., J.P. Morgan Securities LLC, Wells Fargo Securities, LLC, Academy Securities, Inc., CastleOak Securities, L.P., Drexel Hamilton, LLC, Loop Capital Markets LLC, MFR Securities, Inc., Mischler Financial Group, Inc., RBC Capital Markets, LLC, Samuel A Ramirez & Company, Inc. and Siebert Williams Shank & Co., LLC, as dealer managers, entered into the Registration Rights Agreement with respect to the Restricted Notes. In the Registration Rights Agreement, the Company agreed, among other things, for the benefit of the holders of the Restricted Notes to use commercially reasonable efforts to (1) cause to be filed a registration statement on Form S-4 with respect to a registered offer to exchange each series of Restricted Notes for Registered Notes, with terms substantially identical in all material respects to such series of Restricted Notes (except that the Registered Notes will not contain terms with respect to transfer restrictions or any increase in annual interest rate) and (2) cause such registration statement become effective under the Securities Act by January 29, 2025.
If the SEC declares the registration statement of which this prospectus forms a part effective, the Company will offer the Registered Notes in exchange for the Restricted Notes. Each of the exchange offers will remain open for at least 20 business days from the date such prospectus is mailed and/or electronically delivered. For each Restricted Note surrendered to the Company under the exchange offers, the holders of such Restricted Note will receive a Registered Note of such series of equal principal amount. Interest on the Registered Notes will be payable semi-annually and will accrue from the most recent interest payment date on which interest was paid on the applicable series of Restricted Notes prior to the date such series of Registered Notes are issued, which was December 15, 2023 in the case of the Registered 2027 Notes and the Registered 2047 Notes and March 15, 2024 in the case of the Registered 2026 Notes, the Registered 2030 Notes and the Registered 2050 Notes. A holder of registrable securities that participates in the exchange offers will be deemed to make certain representations to us. The Company will use commercially reasonable efforts to complete the exchange offers not later than 60 days after the registration statement becomes effective.
Under existing interpretations of the SEC contained in several no-action letters to third parties, the Registered Notes will be freely transferable after the exchange offers without further registration under the Securities Act, except that any broker-dealer that participates in the exchange offers must deliver a prospectus meeting the requirements of the Securities Act when it resells the Registered Notes. In addition, under applicable interpretations of the staff of the SEC, the Company’s affiliates will not be permitted to exchange their Restricted Notes for Registered Notes in the exchange offers.
The Company will agree to make available, during the period required by the Securities Act, a prospectus meeting the requirements of the Securities Act for use by participating broker-dealers and other persons, if any, with similar prospectus delivery requirements for use in connection with any resale of the Registered Notes. Restricted Notes of any series not tendered in the exchange offers will continue to bear interest at the rate set forth in the Indenture with respect to such series of Restricted Notes and be subject to all the terms and conditions specified in the Indenture, including transfer restrictions, but will not retain any rights under the Registration Rights Agreement (including with respect to increases in annual interest rate described below) after the consummation of the exchange offers.
If for any reason the exchange offers are not completed on or prior to January 29, 2025 or if, following such date, the Company receives a written request from certain holders of the Restricted Notes for the filing of a shelf registration statement, then the Company will use commercially reasonable efforts to file and to have become effective a shelf registration statement relating to resales of the Restricted Notes and to keep that shelf registration statement effective until the date that the Restricted Notes cease to be “registrable securities” (as defined below). The Company will, in the event of such a shelf registration, provide to each participating holder of Restricted Notes copies of a prospectus, notify each participating holder of Restricted Notes when the shelf registration statement has become effective and take certain other actions to permit resales of the Restricted Notes. A holder of registrable securities that sells Restricted Notes under the shelf registration statement
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generally will be deemed to make certain representations to the Company, to be named as a selling security holder in the related prospectus and to deliver a prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with those sales and will be bound by the provisions of the Registration Rights Agreement that are applicable to such a holder of registrable securities (including certain indemnification obligations). Holders of registrable securities will also be required to suspend their use of the prospectus included in the shelf registration statement under specified circumstances upon receipt of notice from the Company.
If a “registration default” (as defined below) occurs with respect to a series of registrable securities, then additional interest shall accrue on the principal amount of the Restricted Notes of a particular series that are registrable securities at a rate of 0.25% per annum for the first 90-day period beginning on the day immediately following such registration default (which rate will be increased by an additional 0.25% per annum for each subsequent 90-day period that such additional interest continues to accrue; however, the rate at which such additional interest accrues may in no event exceed 1.00% per annum). The additional interest will cease to accrue when the registration defaults end. A “registration default” occurs if (i) the exchange offer registered on a registration statement on Form S-4 for the Restricted Notes validly tendered in accordance with the terms of such registration statement is not completed on or prior to January 29, 2025 or, if a shelf registration statement is required, such shelf registration statement is not declared effective on or prior to the 60th day after the later of (A) January 29, 2025 and (B) the date on which the Company receives a written request from certain holders of the Restricted Notes for the filing of a shelf registration statement or (ii) if applicable, a shelf registration statement covering resales of the Restricted Notes has been declared effective and such shelf registration statement ceases to be effective or the prospectus contained therein ceases to be usable for resales of registrable securities (A) on more than two occasions of at least 30 consecutive days during the required effectiveness period as described therein or (B) at any time in any 12-month period during the required effectiveness period as described therein and such failure to remain effective or be so usable exists for more than 90 days (whether or not consecutive) in any 12-month period. A registration default ends with respect to a series of Restricted Notes when such Restricted Note ceases to be a registrable security or, if earlier, in the case of a registration default under clause (ii) of the definition thereof, when the registration statement again becomes effective or the prospectus again becomes usable as permitted by the definition thereof.
The Registration Rights Agreement defines “registrable securities” initially to mean the Restricted Notes and provides that the Restricted Notes will cease to be registrable securities upon the earliest to occur of the following: (i) when a registration statement with respect to such Restricted Notes has become effective and such Restricted Notes have been exchanged or disposed of pursuant to such registration statement, (ii) when such Restricted Notes cease to be outstanding or (iii) when such Restricted Notes have been resold pursuant to Rule 144 under the Securities Act (but not Rule 144A) without regard to volume restrictions, provided the Company shall have removed or caused to be removed any restrictive legend on the Restricted Notes.
Any amounts of additional interest due will be payable in cash on the same original interest payment dates as interest on the Restricted Notes is payable.
This summary of the provisions of the Registration Rights Agreement does not purport to be complete and is subject to, and is qualified in its entirety to, all the provisions of the Registration Rights Agreement.
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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a general discussion summarizesof certain material U.S. federal income tax consequencesconsiderations relating to U.S. Holders and Non-U.S. Holders (each term as defined below)the exchange of the Exchange Offers and the ownership and disposition of any NewRestricted Notes acquiredfor Registered Notes in the Exchange Offers.exchange offers. It does not purport to contain a complete analysis of all the potential tax considerations relating to the exchange. This summarydiscussion is based upon the provisions of the U.S. Internal Revenue Code of 1986, as amended (the “Code”“Code”), proposed, temporary and final Treasury regulations promulgated under the Code, and administrative rulings and judicial decisions, in each case as of the date of this prospectus. These authorities are subject to differing interpretations and may be changed, perhaps retroactively, resulting in U.S. federal income tax consequences different from those discussed below. We have not obtained, nor do we intend to obtain, a ruling from the U.S. Internal Revenue Service (the “IRS”) with respect to the statements made and the conclusions reached in the following summary, and there can be no assurance that the IRS will agree with such statements and conclusions.
This summary assumes that the Existing Notes are, and any New Notes will be, held as capital assets within the meaning of Section 1221 of the Code (generally, property held for investment). This summary does not address other U.S. federal tax laws (such as Medicare contribution tax laws and estate and gift tax laws) or the tax considerations arising under the laws of any state, local or non-U.S. jurisdiction. In addition, this summary does not address all tax considerations that may be applicable to a particular holder’s circumstances or to holders that may be subject to special tax rules, including, without limitation, holders subject to the alternative minimum tax, banks, insurance companies or other financial institutions, regulated investment companies, real estate investment trusts, tax-exempt organizations, dealers in securities or currencies, traders in securities that elect to use a mark-to-market method of tax accounting for their securities holdings, U.S. Holders whose “functional currency” is not the U.S. dollar, controlled foreign corporations, passive foreign investment companies, U.S. expatriates, partnerships or other pass-through entities for U.S. federal income tax purposes, holders holding the Existing Notes or the New Notes as a position in a hedging transaction, “straddle,” “conversion transaction” or other risk reduction transaction, holders deemed to sell the Existing Notes or the New Notes under the constructive sale provisions of the Code, holders required to accelerate the recognition of any item of gross income with respect to the Existing Notes or the New Notes as a result of such income being recognized on an applicable financial statement, or subsequent purchasers of the New Notes.
For purposes of this discussion a “U.S. Holder” is a beneficial owner of the Existing Notes or the New Notes that is, for U.S. federal income tax purposes: (i) a citizen or individual resident of the United States, (ii) a corporation, including any entity treated as a corporation for U.S. federal income tax purposes, created or organized in, or under the laws of, the United States, any state thereof or the District of Columbia, (iii) an estate the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) a trust, if its administration is subject to the primary supervision of a U.S. court and one or more United States persons have the authority to control all substantial decisions of the trust, or if it has made a valid election under applicable Treasury regulations to be treated as a United States person.
For purposes of this discussion, a “Non-U.S. Holder” is a beneficial owner of the Existing Notes or the New Notes that is neither a U.S. Holder nor a partnership or other entity treated as a partnership for U.S. federal income tax purposes.
If a partnership (or other entity treated as a partnership for U.S. federal income tax purposes) holds the Existing Notes or the New Notes, the tax treatment of a partner in the partnership will depend upon the status of the partner and the activities of the partnership. If you are a partnership or a partner in a partnership holding the Existing Notes or the New Notes, you should consult your tax advisor regarding the tax consequences of the Exchange Offers and the ownership and disposition of any New Notes acquired in the Exchange Offers.
We believe, and the following discussion assumes, that the Existing Notes are, and the New Notes will be, treated as debt for U.S. federal income tax purposes.
This summary is for general information purposes only, and is not intended to be, and should not be construed to be, legal or tax advice to any particular holder. Youonly. All holders are urged to consult yourwith their tax advisor with regardadvisors as to the applicationspecific tax consequences to them of the U.S. federal income tax laws, as well as the applicationexchange of non-income tax laws and the lawsRestricted Notes for Registered Notes in light of any state, local or non-U.S. taxing jurisdiction, to yourtheir particular situation.
Tax Consequences to Exchanging U.S. Holders
Tax Consequences of the Exchange
Under general principles of U.S. federal income tax law, the modification of a debt instrument can give rise to an exchange under Section 1001 of the Code upon which gain or loss is realized if the modified debt instrument differs materially either in kind or in extent from the original debt instrument. In this regard, governing Treasury regulations (the “Modification Regulations”) provide that, as a general rule, an exchange occurs when, based on all the facts and circumstances, including the applicability and taking into account all changeseffect of any U.S. federal, state, local, foreign or other tax laws.
Consequences of Tendering Restricted Notes
The exchange of Restricted Notes for Registered Notes in the terms of the debt instrument collectively (other than certain specified changes), the legal rights or obligations that are altered, and the degree to which they are altered, are economically significant (a “significant modification”). The Modification Regulations can apply to any modification of a debt instrument, regardless of the form of the modification, including an exchange of a new debt instrument for an existing debt instrument. Therefore, the Modification Regulations are relevant in determining the consequences of an exchange of Existing Notes for New Notes pursuant to the Exchange Offers.
Under the Modification Regulations, a change in yield of a debt instrument is a significant modification if the yield of the modified debt instrument varies from the yield on the unmodified instrument (determined as of the date of the modification) by more than the greater of (i) 25 basis points and (ii) 5 percent of the annual yield of the unmodified instrument. For this purpose, the yield of the modified debt instrument is the annual yield of a debt instrument with (i) an issue price equal to the adjusted issue price of the unmodified debt instrument on the date of the modification (increased by accrued but unpaid interest and decreased by payments made to the holder as consideration for the modification) and (ii) payments equal to the payments on the modified debt instrument from the date of the modification. The Modification Regulations also provide that, in general, a modification of a debt instrument that results in a material deferral of scheduled payments, including an extension of the final maturity date, is a significant modification. However, the Modification Regulations provide that a deferral isoffers will not a material deferral if the deferred payments are unconditionally payable no later than at the end of a safe harbor period which begins on the original due date of the first scheduled payment that is deferred and extends for a period equal to the lesser of (i) five years or (ii) 50% of the original term of the debt instrument.
We intend to take the position, and the following discussion assumes, that the exchange of Existing Notes for New Notes pursuant to the Exchange Offers will, in each case, constitute a significant modification under the Modification Regulations. Therefore, you will generally recognize gain or loss in full upon thetaxable exchange of Existing Notes for New Notes unless the exchange qualifies as a recapitalization for U.S. federal income tax purposes.
In order for the exchange to qualify as a recapitalization, the Existing Notes surrendered and the New Notes received must be treated as “securities” under the relevant provisions of the Code. Neither the Code nor the Treasury regulations define the term security. Whether a debt instrument is a security is based on all of the facts and circumstances, but most authorities have held that the term to maturity
of the debt instrument is one of the most significant factors. In this regard, debt instruments with a term of ten years or more generally have qualified as securities, whereas debt instruments with a term of less than five years generally have not qualified as securities. Each series of Existing Notes had an initial term of more than ten years and the New Notes will have a term of more than ten years.Thus, although the matter is not free from doubt, we believe, and the following discussion assumes, that the Existing Notes and the New Notes would both be treated as securities and that the exchange of Existing Notes for New Notes will be treated as a recapitalization for U.S. federal income tax purposes. There can be no assurance, however, that the IRSAccordingly, you will not challenge the treatment ofrecognize gain or loss upon the exchange of ExistingRestricted Notes for NewRegistered Notes, as a recapitalization, and any such challenge, if successful, would generally result in consequences different than those described below. You should consult your tax advisor regarding the qualification of the exchange as a recapitalization for U.S. federal income tax purposes.
Upon the exchange of Existing Notes for New Notes pursuant to the Exchange Offers, you will, subject to the discussions under “—Early Exchange Premium” and “—Cash in Lieu of Fractional New Notes,” generally recognize gain (but not loss) equal to the lesser of (i) the amount of any gain realized on the exchange, computed in the manner described below, and (ii) cash received in the exchange (other than cash paid in respect of accrued and unpaid interest on the Existing Notes, the treatment of which is described below under “—Accrued and Unpaid Interest”). The gain, if any, realized on the exchange will equal the difference between (i) the sum of the “issue price” of the New Notes received (as described below under “—Issue Price of the New Notes”) and the cash received (other than cash paid in respect of accrued and unpaid interest on the Existing Notes), and (ii) your adjusted tax basis in the ExistingRegistered Notes surrendered. Your adjusted taxwill be the same as your basis in the Existing Notes will generally equal the amount paid therefor, increased by market discount, if any, previously included in income and reduced by any bond premium previously amortized. Subject to the discussions under “—Market Discount” and “—Early Exchange Premium,” any gain recognized in the exchange will be capital gain and will be long-term capital gain if you held the Existing Notes for more than one year prior to the date of the exchange. Long-term capital gains of non-corporate U.S. Holders (including individuals) are eligible for reduced rates of taxation. You will have an initial tax basis in the New Notes equal to your adjusted tax basis in the ExistingRestricted Notes surrendered in the exchange increased by any gain that you recognize intherefor immediately before the exchange, and decreased by any cash received in the exchange (other than cash paid in respect of accrued and unpaid interest on the Existing Notes). In addition, your holding period forin the NewRegistered Notes will include your holding period for the ExistingRestricted Notes surrendered inexchanged.
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Each broker-dealer that receives Registered Notes for its own account pursuant to the Exchange Offers.
If you hold Existing Notes with differing tax bases and/or holding periods, the preceding rules must be applied separately to each identifiable block of Existing Notes.
Issue Price of the New Notes. The determination of the issue price of the New Notes will depend on whether the New Notes and/or the Existing Notes exchanged therefor are “publicly traded” for U.S. federal income tax purposes. If the New Notes are publicly traded, they generally will have an issue price equal to their fair market value on the date of issuance. We expect that the New Notesexchange offers will be publicly traded, and, thus,deemed to acknowledge that each series of New Notesit will have an issue price equal to their fair market value on the date of issuance. If we determine that the New Notes are publicly traded for U.S. federal income tax purposes, we will make that determination as well as our determination of the fair market value of the New Notes available to holders indeliver a commercially reasonable fashion, including by electronic publication, within 90 days of the date that the New Notes are issued.
Market Discount. You will be considered to have acquired an Existing Note with “market discount” if the stated principal amount of such Existing Note exceeded your initial tax basis for such Existing Note by more than a de minimis amount. If your Existing Notes were acquired with market discount, any gain recognized on the exchange of Existing Notes for New Notes will be treated as ordinary income (and will not receive capital gain treatment) to the extent of the market discount accrued during
your period of ownership, unless you previously had elected to include market discount in income as it accrued for U.S. federal income tax purposes. Any accrued market discount on the Existing Notes that was not previously included in income (includingprospectus in connection with the exchange) will generally carry overany resale of such Registered Notes. This prospectus, as it may be amended or supplemented from time to the New Notes. The Newtime, may be used by a broker-dealer in connection with resales of Registered Notes received will also be treated as acquired with market discount (including any accrued market discount described above) if their stated principal amount (or their issue price if the New Notes are issued with original issue discount as described below) exceeds your initial tax basis in such New Notes by more than a de minimis amount.
If you acquired your Existing Notes (other than at original issuance) for a price less than their stated principal amount, you should consult your tax advisor regarding the possible application of the market discount rules.
Early Exchange Premium. If you tender your Existing Notes on or before the Early Exchange Time, you will be eligible to receive the Early Exchange Premium. Although the U.S. federal income tax treatment of the receipt of the Early Exchange Premium is unclear, we intend to take the position, and this discussion assumes, that the Early Exchange Premium should be treated as additional consideration received in exchange for the Existing Notes. However, the IRS could take the positionRestricted Notes that the Early Exchange Premium instead should be treatedwere acquired by such broker-dealer as a separate feeresult of market-making or other trading activities. Microsoft has agreed that, would be subjectfor a period of up to tax as ordinary income. You are urged to consult your tax advisor with respect to180 days after the U.S. federal income tax treatment of the Early Exchange Premium.
Cash in Lieu of Fractional New Notes. If you receive cash in lieu of fractional amounts of New Notes, you will generally be treated as having received fractional New Notes corresponding to such fractional amounts pursuant to the Exchange Offers and then as having had those fractional New Notes sold for cash. As a result, you will generally recognize gain or loss on the receipt of cash in lieu of fractional New Notes, which gain or loss will generally be determined as described below under “—Tax Consequences of the Ownership of the New Notes—Sale, Exchange or Retirement of the New Notes.”
Accrued and Unpaid Interest. Any amount received pursuant to the Exchange Offers that is properly allocable to accrued and unpaid interest on an Existing Note will generally be includible in your gross income as ordinary interest income if such accrued interest had not been included previously in your gross income for U.S. federal income tax purposes.
Tax Consequences of the Ownership of the New Notes
Payments of Interest. Payments of stated interest on the New Notes will be taxed to you as ordinary income at the time the interest is paid or accrued in accordance with your method of accounting for U.S. federal income tax purposes.
Original Issue Discount. If the issue price of the New Notes of a series (as described above under “—Tax Consequences of the Exchange—Issue Price of the New Notes”) is less than their stated principal amount by more than a specified de minimis amount, such New Notes will be treated as issued with original issue discount (“OID”) in an amount equal to such difference. For these purposes, the discount will be considered to exceed the de minimis threshold if it is at least equal to 0.25% of the stated principal amount of the New Notes multiplied by the number of complete years to maturity from the issueexpiration date of the New Notes.
You must generally include OID in your gross income (as ordinary income) as it accrues (on a constant yield to maturity basis) over the term of a New Note without regard to your regular method of accounting for U.S. federal income tax purposes and in advance of the receipt of cash payments attributable to that income.
The amount of OID,exchange offers, if any, that you must include in income with respect to a New Note will generally equal the sum of the “daily portions” of OID with respect to the New Note for each day during the taxable year or portion of the taxable year in which you held such New Note (“accrued OID”). The daily portion is determinedrequested by allocating to each day in each “accrual period” a pro rata portion of the OID allocable to that accrual period. The “accrual period” for a New Note may be of any length and may vary in length over the term of the New Note, provided that each accrual period is no longer than one year and each scheduled payment of principal or interest occurs on the first day or the final day of an accrual period. The amount of OID allocable to any accrual period other than the final accrual period is an amount equal to the excess, if any, of (i) the product of the New Note’s adjusted issue price at the beginning of such accrual period and its yield to maturity (determined on the basis of compounding at the close of each accrual period and properly adjusted for the length of the accrual period) over (ii) the aggregate of all stated interest allocable to the accrual period. OID allocable to a final accrual period is the difference between the amount payable at maturity (other than a payment of stated interest) and the adjusted issue price of the New Note at the beginning of the final accrual period. The adjusted issue price of a New Note at the beginning of any accrual period is equal to its issue price, increased by the accrued OID, if any, for each prior accrual period (determined without regard to the amortization of any acquisition premium or amortizable bond premium, as discussed below). Under these rules, you generally will have to include in income increasingly greater amounts of OID in successive accrual periods.
If your initial tax basis in a New Note is greater than its issue price and less than or equal to its stated principal amount, the New Note will be considered to have been issued to you at an “acquisition premium.” Under the acquisition premium rules, the amount of OID that you must include in gross income with respect to the New Note for any taxable year will be reduced by the portion of the acquisition premium properly allocable to that year.
You may elect to treat all interest (including stated interest, OID or de minimis OID, and market discount or de minimis market discount, as adjusted by any acquisition premium or amortizable bond premium) on a New Note as OID and calculate the amount includible in gross income under the constant yield method described above. The election must be made for the taxable year in which you acquire the New Note, and may not be revoked without the consent of the IRS. You should consult your tax advisor about this election. This discussion assumes this election is not made.
Amortizable Bond Premium. If your initial tax basis in a New Note is greater than its stated principal amount, you will be considered to have acquired the New Note with “amortizable bond premium” and, in the case of any New Notes issued with OID, you will not be required to include any OID in income. You generally may elect to amortize the premium over the remaining term of the New Note on a constant yield method as an offset to interest when includible in income under your regular accounting method. However, because the New Notes may be redeemed by us prior to maturity at a premium, special rules apply that may reduce, eliminate or defer the amount of premium that you may amortize with respect to a New Note. You should consult your tax advisor about these special rules. If you do not elect to amortize the premium, that premium will decrease the gain or increase the loss you would otherwise recognize on maturity or disposition of the New Note. An election to amortize premium on a constant yield method will also apply to all other taxable debt instruments held or subsequently acquired by you on or after the first day of the first taxable year for which the election is made. Such an election may not be revoked without the consent of the IRS. You should consult your tax advisor about this election.
Market Discount. If your New Notes have market discount (see “—Tax Consequences of the Exchange— Market Discount” above), under the market discount rules, you will be required to treat any gain on the sale, exchange or retirement of such New Notes as ordinary income to the extent of the market discount that is treated as having accrued on such New Notes at the time of the sale,
exchange or retirement, and which you have not previously included in income. Any market discount will be considered to accrue ratably during the period from the date of acquisition to the maturity date of the New Notes unless you elect to accrue on a constant interest method.
You may elect to include market discount in income currently as it accrues, on either a ratable or constant interest method, in which case any gain recognized will not be recharacterized as ordinary income.
Sale, Exchange or Retirement of the New Notes. Unless a non-recognition provision applies, you will recognize taxable gain or loss upon a sale, exchange or retirement of a New Note in an amount equal to the difference between (i) the amount of cash and the fair market value of any property received (less an amount equal to any accrued but unpaid stated interest, which will be taxed in the manner described above under “—Payments of Interest”) and (ii) your adjusted tax basis in the New Note. Your adjusted tax basis in a New Note will be your initial tax basis in the New Note, increased by any OID or market discount previously included in income, and reduced by any amortized bond premium.
Any gain or loss on the sale, exchange or retirement of a New Note will be capital gain or loss (although all or a portion of any recognized gain could be subject to ordinary income treatment if there is any accrued market discount on the New Note that has not been included in income at the time of the sale, exchange or retirement, as discussed above under “—Market Discount”) and will be long-term capital gain or loss if the New Note has a holding period of more than one year at the time of the sale, exchange or retirement. Long-term capital gains of non-corporate U.S. Holders (including individuals) are eligible for reduced rates of taxation. The deductibility of capital losses is subject to limitations.
Tax Consequences to Exchanging Non-U.S. Holders
The following discussion is a summary of certain U.S. federal income tax consequences that will apply to you if you are a Non-U.S. Holder who exchanges Existing Notes for New Notes pursuant to the Exchange Offers.
For purposes of the discussion below, any income or gain will be considered to be “U.S. trade or business income” if such income or gain is:
effectively connected with your conduct of a U.S. trade or business; and
if required by an applicable income tax treaty with the United States, attributable to a U.S. permanent establishment (or a fixed base) maintained by you in the United States.
Tax Consequences of the Exchange
Subject to the discussions under “—Early Exchange Premium” and “—Backup Withholding and Information Reporting—Non-U.S. Holders,” you will generally not be subject to U.S. federal income or withholding tax on any gain recognized on the exchange of Existing Notes for New Notes (which gain would be determined as described above under “—Tax Consequences to Exchanging U.S. Holders—Tax Consequences of the Exchange”) unless:
such gain is U.S. trade or business income; or
you are an individual who is present in the United States for 183 days or more such broker-dealers, Microsoft will amend or supplement this prospectus in the taxable year in which the gain is realized and certain other conditions are met.
Regarding the first bullet above, a Non-U.S. Holder who realizes U.S. tradeorder to expedite or business income with respect to the exchange generally will be subject to U.S. federal income tax on that income in the
same manner as a U.S. Holder (see “—Tax Consequences to Exchanging U.S. Holders—Tax Consequences of the Exchange” above). In addition, if you are a foreign corporation, you may be subject to a branch profits tax equal to 30% (or lower applicable income tax treaty rate) of your effectively connected earnings and profits, subject to adjustments. If you are an individual Non-U.S. Holder described in the second bullet above, unless an applicable income tax treaty provides otherwise, you will generally be subject to a flat 30% U.S. federal income tax on any gain recognized, which may be offset by certain U.S. source losses.
Accrued and Unpaid Interest. Subject to the discussions under “—Backup Withholding and Information Reporting—Non-U.S. Holders” and “—Additional Withholding Requirements,” the portion of the amount paid pursuant to the Exchange Offers that is properly allocable to accrued but unpaid interest on the Existing Notes will not be subject to U.S. federal income or withholding tax under the “portfolio interest rule,” provided that:
the accrued interest is not U.S. trade or business income;
you do not actually (or constructively) own 10% or more of the total combined voting power of all classes of our voting stock within the meaning of the Code and applicable Treasury regulations;
you are not a controlled foreign corporation that is related to us through stock ownership;
you are not a bank whose receipt of interest on the Existing Notes is described in Section 881(c)(3)(A) of the Code; and
either (a) you provide your name and address on an applicable IRS Form W-8, and certify, under penalties of perjury, that you are not a United States person as defined under the Code or (b) you hold your Existing Notes through certain foreign intermediaries and satisfy the certification requirements of applicable United States Treasury regulations. Special certification rules apply to Non-U.S. Holders that are pass-through entities rather than corporations or individuals.
If you cannot satisfy the requirements described above, the portion of the amount paid pursuant to the Exchange Offers that is properly allocable to accrued but unpaid interest on the Existing Notes will generally be subject to a 30% U.S. federal withholding tax, unless you provide the applicable withholding agent with a properly executed:
IRS Form W-8BEN or Form W-8BEN-E (or other applicable form) claiming an exemption from or reduction in withholding under the benefit of an applicable income tax treaty; or
IRS Form W-8ECI (or other applicable form) stating that interest paid on the Existing Notes is not subject to withholding tax because it is U.S. trade or business income (as discussed in further detail below).
If the portion of the proceeds received by you that is properly allocable to accrued but unpaid interest on the Existing Notes is U.S. trade or business income, you will not be subject to the 30% U.S. federal withholding tax on such interest if you provide the applicable withholding agent with a properly executed IRS Form W-8ECI, as discussed above. Instead, you generally will be taxed on such interest in the same manner as a U.S. Holder (see “—Tax Consequences to Exchanging U.S. Holders—Tax Consequences of the Exchange—Accrued and Unpaid Interest” above). In addition, if you are a foreign corporation, you may be subject to an additional branch profits tax equal to 30% (or lower applicable income tax treaty rate) of your effectively connected earnings and profits, subject to adjustments.
Early Exchange Premium. As discussed above under “—Tax Consequences to Exchanging U.S. Holders—Tax Consequences of the Exchange—Early Exchange Premium,” although the U.S. federal
income tax treatment of the Early Exchange Premium is uncertain, we intend to take the position that any Early Exchange Premium should be treated as part of the consideration received in exchange for the Existing Notes. However, if any Early Exchange Premium were to be treated as a separate fee, then such payment could be subject to U.S. federal withholding tax. You are urged to consult your tax advisor with respect to the U.S. federal income tax treatment of the Early Exchange Premium.
Tax Consequences of the Ownership of the New Notes
Payments of Interest. Subject to the discussions under “—Backup Withholding and Information Reporting—Non-U.S. Holders” and “—Additional Withholding Requirements,” U.S. federal withholding tax will not apply to any payment of interest (including any OID) on the New Notes, provided that you meet the requirements of the portfolio interest rule described above in “—Tax Consequences of the Exchange—Accrued and Unpaid Interest.”
If you cannot satisfy the requirements of the portfolio interest rule, payments of interest (including any OID) on the New Notes made to you will generally be subject to a 30% U.S. federal withholding tax, unless you provide the applicable withholding agent with a properly executed:
IRS Form W-8BEN or Form W-8BEN-E (or other applicable form) claiming an exemption from or reduction in withholding under the benefit of an applicable income tax treaty; or
IRS Form W-8ECI (or other applicable form) stating that interest paid on the New Notes is not subject to withholding tax because it is U.S. trade or business income.
Sale, Exchange or Retirement of the New Notes. Subject to the discussion under “—Backup Withholding and Information Reporting—Non-U.S. Holders,” any gain realized upon the sale, exchange or retirement of a New Note will not be subject to U.S. federal income or withholding tax unless:
the gain is U.S. trade or business income, in which case the gain will be subject to tax as described below under “—Effectively Connected Interest and Gain”; or
you are an individual who is present in the United States for 183 days or more in the taxable year of that sale, exchange or retirement, and certain other conditions are met, in which case the gain (net of certain U.S. source capital losses) will be subject to a flat 30% tax, unless an applicable income tax treaty provides otherwise.
To the extent proceeds from the sale, exchange or retirement of a New Note represent accrued and unpaid stated interest, you will generally be subject to U.S. federal income tax with respect to such accrued and unpaid stated interest in the same manner as described above under “—Payments of Interest.”
Effectively Connected Interest and Gain. If any interest (including any OID) on, or gain realized uponfacilitate the disposition of the Newany Registered Notes is U.S. trade or business income, youby any such broker-dealers.
Microsoft will be subject to U.S. federal income tax on that interest or gain on a net income basis (although you will be exempt from the 30% U.S. federal withholding tax on interest, provided the certification requirements discussed above are satisfied) in the same manner as if you were a U.S. Holder. In addition, if you are a foreign corporation, you may be subject to an additional branch profits tax equal to 30% (or lower applicable income tax treaty rate) of your effectively connected earnings and profits, subject to adjustments.
Backup Withholding and Information Reporting
U.S. Holders
Information reporting requirements will generally apply to payments of interest on the Existing Notes or the New Notes,not receive any OID accruals on the New Notes, and proceeds from a disposition
(including a retirement or redemption)any sale of the ExistingRegistered Notes or the Newby broker-dealers. Registered Notes (unless, in each case, you are an exempt recipient such as a corporation). Backup withholding may apply to any payments described in the preceding sentence if you fail to provide a taxpayer identification number or a certification that you are not subject to backup withholding. Backup withholding is not an additional tax and any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against your U.S. federal income tax liability, provided that the required information is timely furnished to the IRS.
Non-U.S. Holders
Information returns generally will be filed in connection with the amount of interest (including any OID) paid to you with respect to the Existing Notes or the New Notes and the amount of tax, if any, withheld with respect to such payments. Copies of the information returns reporting such interest payments and any withholding may also be made available to the tax authorities in the country in which you reside under the provisions of an applicable income tax treaty.
In general, you will not be subject to backup withholding with respect to interest (including any OID) paid to you with respect to the Existing Notes or the New Notes, provided in each case that the applicable withholding agent does not have actual knowledge or reason to know that you are a United States person as defined under the Code, and you have provided a validly completed applicable IRS Form W-8 establishing that you are not a United States person (or you satisfy certain documentary evidence requirementsreceived by broker-dealers for establishing that you are not a United States person).
Information reporting and, depending on the circumstances, backup withholding will apply to the proceeds of a sale or other disposition (including a retirement or redemption) of the Existing Notes or the New Notes made within the United States or conducted through certain United States-related financial intermediaries, unless you certify to the payor under penalties of perjury that you are not a United States person as defined under the Code (and the payor does not have actual knowledge or reason to know that you are a United States person), or you otherwise establish an exemption.
Backup withholding is not an additional tax and any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against your U.S. federal income tax liability, provided that the required information is timely furnished to the IRS.
Additional Withholding Requirements
Under Sections 1471 through 1474 of the Code (such Sections commonly referred to as “FATCA”), a 30% U.S. federal withholding tax may apply to any interest (including any OID) paid on the Existing Notes or the New Notes to (i) a “foreign financial institution” (as specifically defined in the Code) which does not provide sufficient documentation, typically on IRS Form W-8BEN-E, evidencing either (x) an exemption from FATCA, or (y) its compliance (or deemed compliance) with FATCA (which may alternatively be in the form of compliance with an intergovernmental agreement with the United States) in a manner which avoids withholding, or (ii) a “non-financial foreign entity” (as specifically defined in the Code) which does not provide sufficient documentation, typically on IRS Form W-8BEN-E, evidencing either (x) an exemption from FATCA, or (y) adequate information regarding certain substantial U.S. beneficial owners of such entity (if any). If an interest payment is both subject to withholding under FATCA and subject to the withholding tax discussed above under “—Tax Consequences to Exchanging Non-U.S. Holders—Tax Consequences of the Exchange—Accrued and Unpaid Interest” and “—Tax Consequences to Exchanging Non-U.S. Holders—Tax Consequences of the Ownership of the New Notes—Payments of Interest,” the withholding under FATCA may be credited against, and therefore reduce, such other withholding tax.
However, any debt instrument issued before July 1, 2014 is generally treated as a “grandfathered obligation” that is exempt from FATCA withholding (unless such debt instrument was the subject of a “significant modification” after such date). Accordingly, FATCA withholding is not expected to apply with respect to payments attributable to accrued and unpaid interest on the 5.200% Notes due 2039, the 4.500% Notes due 2040, the 5.300% Notes due 2041, the 3.500% Notes due 2042, the 3.750% Notes due 2043 and the 4.875% Notes due 2043. In addition, while withholding under FATCA would also have applied to payments of gross proceeds from a taxable disposition of the Existing Notes or the New Notes on or after January 1, 2019, proposed U.S. Treasury regulations (the preamble to which indicates that taxpayers may rely on the regulations pending their finalization) eliminate FATCA withholding on payments of gross proceeds entirely.
You should consult your tax advisor regarding these rules and whether they may be relevant to the exchange of the Existing Notesown account pursuant to the Exchange Offers and your ownership and disposition of the New Notes.
Non-Exchanging Holders
If you are a holder of Existing Notes that does not participate in the Exchange Offers, you will not recognize any gain or loss in respect of the Exchange Offers for U.S. federal income tax purposes.
NOTICES TO CERTAIN NON-U.S. HOLDERS
General
No action has been or will be taken in any non-U.S. jurisdiction that would permit a public offering of the New Notes or the possession, circulation or distribution of this prospectus or any material relating to us, the Existing Notes or the New Notes in any jurisdiction where action for that purpose is required. Accordingly, the New Notes offered in the exchange offers may not be offered, sold or exchanged, directly or indirectly, and neither this prospectus nor any other offering material or advertisements in connection with the exchange offers may be distributedsold from time to time in one or published,more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Registered Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such countrybroker-dealer or jurisdiction, except in compliance with any applicable rules or regulationsthe purchasers of any such country or jurisdiction.
This prospectus does not constitute an offerRegistered Notes. Any broker-dealer that resells Registered Notes that were received by it for its own account pursuant to buy or sell or a solicitation of an offer to buy or sell either Existing Notes or New Notes in any jurisdiction in which, or to or from any person to or from whom, it is unlawful to make such offer or solicitation under applicable securities laws or otherwise. The distribution of this prospectus in certain jurisdictions (including, but not limited to, Canada, the European Economic Area, the United Kingdom, the People’s Republic of China, Japan, Hong Kong, Singapore and Switzerland) may be restricted by law. Persons into whose possession this prospectus comes are required by us, the dealer managers and the exchange agent to inform themselves about, and to observe, any such restrictions. In those jurisdictions where the securities, blue sky or other laws require the exchange offers, to be made by a licensedand any broker or dealer and the dealer managers or anythat participates in a distribution of their affiliates is a licensed broker or dealer in any such jurisdiction, such exchange offers shallRegistered Notes may be deemed to be made by such dealer manager or such affiliate (as the case may be) on our behalf in such jurisdiction.
The New Notes will be issued only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. See ‘‘Description of the Exchange Offers—No Fractional Amounts of New Notes.’’ If, under the terms of the Exchange Offers, the aggregate principal amount of New Notes that any tendering holder is entitled to receive is not in a minimum denomination of $2,000 or an integral multiple of $1,000 in excess thereof, we will round downward the amount of the New Notes to $1,000 or the nearest integral multiple of $1,000 in excess thereof and pay the difference in cash.
Canada
The New Notes may be offered or sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103Registration Requirements, Exemptions and Ongoing Registrant Obligations. Accordingly, holders of Existing Notes that are located or resident in Canada may only participate in and receive New Notes in the Exchange Offers if they satisfy these requirements. Any resale of the New 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 offering memorandum (including any amendment thereto) contains 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 purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 of National Instrument 33-105Underwriting Conflicts (NI 33-105), the purchasers are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with the Tender Offers and Solicitations.
Holders of Existing Notes that are located or resident in Canada must complete, sign and submit a Canadian Eligibility Form in the form approved by the Company and in accordance with the procedures established by the Company to confirm that they satisfy applicable Canadian securities law requirements and to provide certain additional information required for them to participate in the Exchange Offers.
European Economic Area
The New 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 EEA. 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 MiFID II; or (ii) a customer within the meaning of 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 the Prospectus Regulation. Consequently no key information document required by the PRIIPs Regulation for offering or selling the New Notes or otherwise making them available to retail investors in the EEA has been prepared and therefore offering or selling the New Notes or otherwise making them available to any retail investor in the EEA may be unlawful under the PRIIPs Regulation.
This prospectus has been prepared on the basis that any offer of New Notes in any member state of the EEA will be made pursuant to an exemption under the Prospectus Regulation from the requirement to publish a prospectus for offers of notes. This prospectus is not a prospectus for the purposes of the Prospectus Regulation.
United Kingdom
The New 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 United Kingdom (“UK”). For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the EUWA; (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Article 2 of the Prospectus Regulation as it forms part of domestic law by virtue of the UK Prospectus Regulation. Consequently no key information document required by the PRIIPs Regulation as it forms part of domestic law by virtue of the UK PRIIPs Regulation for offering or selling the New Notes or otherwise making them available to retail investors in the UK has been prepared and therefore offering or selling the New Notes or otherwise making them available to any retail investor in the UK may be unlawful under the UK PRIIPs Regulation.
This prospectus has been prepared on the basis that any offer of New Notes in the UK will be made pursuant to an exemption under the UK Prospectus Regulation from the requirement to publish a prospectus for offers of notes. This prospectus is not a prospectus for the purposes of the UK Prospectus Regulation.
People’s Republic of China
This prospectus may not be circulated or distributed in the People’s Republic of China (‘‘PRC’’) and the New Notes may not be offered or sold, and will not be offered, sold or exchanged, directly or indirectly, to any resident of the PRC or to persons for re-offering or resale, directly or indirectly, to any resident of the PRC except pursuant to applicable laws, rules and regulations of the PRC. For the
purpose of this paragraph only, the PRC does not include Taiwan and the special administrative regions of Hong Kong and Macau.
Japan
The New Notes have not been and will not be registered under the Securities and Exchange Law of Japan (the ‘‘Securities and Exchange Law’’) and no dealer manager may offer, sell or offer to exchange any New Notes, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering, resale or re-exchange, directly or indirectly, in Japan or to a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Securities and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan.
Hong Kong
The New Notes may not be offered, sold or exchanged by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), or (ii) to ‘‘professional investors’’“underwriter” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong)Act, and any rules made thereunder,profit on any such resale of Registered Notes and any commissions or (iii) in other circumstances which do not result inconcessions received by any such persons may be deemed to be underwriting compensation under the document being a ‘‘prospectus’’ within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), and no advertisement, invitation or document relatingSecurities Act.
Each broker-dealer that receives Registered Notes for its own account pursuant to the Newexchange offers will be deemed to acknowledge that it will deliver a prospectus in connection with any resale of such Registered Notes mayand by so acknowledging and by delivering a prospectus, a broker-dealer will not 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), whichdeemed to admit that it is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to New Notes which are or are intended to be disposed of only to persons outside Hong Kong or only to ‘‘professional investors’’an “underwriter” within the meaning of the Securities and Futures Ordinance (Cap. 571, LawsAct.
For a period of Hong Kong) and any rules made thereunder.
Singapore
This prospectus has not been registered as a prospectus with180 days after the Monetary Authorityexpiration date of Singapore. Accordingly,the exchange offers, Microsoft will promptly send additional copies of this prospectus and any other documentamendment or materialsupplement to this prospectus to any broker-dealer that requests such documents in connection withwriting to the exchange agent. Microsoft has agreed to pay certain expenses incident to the exchange offers (including the expenses of one counsel for the New Notes may not be circulated or distributed, nor mayholders of the New Notes be offered, sold or exchanged, or be made the subject of an offer to exchange, whether directly or indirectly, to persons in SingaporeRegistered Notes) other than (i) to an institutional investor under Section 274commissions or concessions of any brokers or dealers and Microsoft will indemnify the holders of the Securities and Futures Act, Chapter 289 of Singapore (the ‘‘SFA’’), (ii) to a relevant person, orRegistered Notes (including any personbroker-dealers) against certain liabilities pursuant to Section 275(IA), 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 New Notes are exchangedRegistration Rights Agreement, including liabilities under Section 275 by a relevant person which is: (a) a corporation (which is not an accredited investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor or (b) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares, debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and interest in that trust shall not be transferable for 6 months after that corporation or that trust has acquired the notes under Section 275 except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(IA), and in accordance with the conditions, specified in Section 275 of the SFA; (2) where no consideration is given for the transfer; or (3) by operation of law.
Singapore Securities and Futures Act Product Classification
Solely for the purposes of its obligations pursuant to sections 309B(1)(a) and 309B(1)(c) of the SFA, Microsoft has determined, and hereby notifies all relevant persons (as defined in Section 309A of the SFA) that the New 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).Act.
Switzerland
Microsoft has not and will not register with the Swiss Financial Market Supervisory Authority (‘‘FINMA’’) as a foreign collective investment scheme pursuant to Article 119 of the Federal Act on Collective Investment Scheme of 23 June 2006, as amended (‘‘CISA’’), and accordingly the New Notes being offered pursuant to this prospectus have not and will not be approved, and may not be licensable, with FINMA. Therefore, the New Notes have not been authorized for distribution by FINMA as a foreign collective investment scheme pursuant to Article 119 CISA and the notes offered hereby may not be offered to the public (as this term is defined in Article 3 CISA) in or from Switzerland. The notes may solely be offered to ‘‘qualified investors,’’ as this term is defined in Article 10 CISA, and in the circumstances set out in Article 3 of the Ordinance on Collective Investment Scheme of 22 November 2006, as amended (‘‘CISO’’), such that there is no public offer. Investors, however, do not benefit from protection under CISA or CISO or supervision by FINMA. This prospectus and any other materials relating to the New Notes are strictly personal and confidential to each offeree and do not constitute an offer to any other person. This prospectus may only be used by those qualified investors to whom it has been handed out in connection with the offer described herein and may neither directly or indirectly be distributed or made available to any person or entity other than its recipients. It may not be used in connection with any other offer and shall in particular not be copied and/or distributed to the public in Switzerland or from Switzerland. This prospectus does not constitute an issue prospectus as that term is understood pursuant to Article 652a and/or 1156 of the Swiss Federal Code of Obligations.38
VALIDITY OF THE NEW NOTESLEGAL MATTERS
The validity of the NewRegistered Notes will be passed upon for us by Simpson Thacher & Bartlett LLP, Palo Alto, California, and, with respect to matters of Washington law, by Keith R. Dolliver, Esq. our Deputy General Counsel. Certain legal matters relating to the securities offered hereby will be passed upon for the Dealer Managers by Weil, Gotshal & Manges LLP, New York, New York.
Mr. Dolliver beneficially owns, or has the right to acquire, an aggregate of less than 0.01% of the common stock of Microsoft Corporation.
Weil, Gotshal & Manges LLP performs legal services for us from time to time.
The financial statements of Microsoft Corporation as of June 30, 2023 and June 30, 2022, and for each of the three years in the period ended June 30, 2023 incorporated by reference in this Prospectus, by reference from Microsoft Corporation’s Annual Report on Form 10-K for the fiscal year ended June 30, 2020, and the effectiveness of Microsoft Corporation’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference.reports. Such financial statements have been soare incorporated by reference in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
With respect to the unaudited interim financial information for the periods ended September 30, 2023 and 2022, December 31, 20202023 and 20192022, and September 30, 2020March 31, 2024 and 2019,2023, which is incorporated herein by reference herein, Deloitte & Touche LLP, an independent registered public accounting firm, have applied limited procedures in accordance with the standards of the Public Company Accounting Oversight Board (United States) for a review of such information. However, as stated in their reports included in Microsoft Corporation’sthe Company’s Quarterly Reports on Form 10-Q for the quarters ended September 30, 2023, December 31, 20202023, and September 30, 2020,March 31, 2024 and incorporated by reference herein, they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their reports on such information should be restricted in light of the limited nature of the review procedures applied. Deloitte & Touche LLP areis not subject to the liability provisions of Section 11 of the Securities Act of 1933 as amended (the “Securities Act”), for their reports on the unaudited interim financial information because those reports are not “reports” or a “part” of the Registration Statement prepared or certified by an accountant within the meaning of Sections 7 and 11 of the Securities Act.Act of 1933.
39
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other business and financial information with the SEC. TheOur SEC maintains an Internet web site that contains reports, proxy and information statements, and other information regarding issuers, including us, that file electronically withfilings are available to the SEC. The public can obtain any documents that we file electronically withat the internet website maintained by the SEC at http://www.sec.govwww.sec.gov.
We You will also make available,be able to obtain many of these documents, free of charge, from us by accessing our website at http://www.microsoft.com under the “Investors” link and then the “SEC Filings” link. The information contained on, or that can be accessed through, our Internet web site (http://www.microsoft.com)website is not part of, and is not incorporated into, this prospectus. This prospectus is part of a registration statement we have filed with the SEC relating to the securities we may offer.
As permitted by SEC rules, this prospectus does not contain all of the information we have included in the registration statement and the accompanying exhibits and schedules we file with the SEC. You may refer to the registration statement, exhibits and schedules for more information about us and our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q,securities.
The SEC allows us to incorporate by reference the information we have filed with it, which means that we can disclose important information to you by referring you to those documents. The information we incorporate by reference is an important part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information furnished pursuant to Item 2.02 or Item 7.01 of any Current ReportsReport on Form 8-K, Proxy Statements on Schedule 14Aunless otherwise specified in such current report) filed after the date of this prospectus and if applicable, amendments to those reports fileduntil the exchange offers described in this prospectus are completed or furnished pursuant to Sectionotherwise terminated. The documents we incorporate by reference include:
• | our Annual Report on Form 10-K for the fiscal year ended June 30, 2023; |
• | our Quarterly Reports on Form 10-Q for the quarterly periods ended September 30, 2023, December 31, 2023 and March 31, 2024; |
• | our Current Reports on Form 8-K filed with the SEC on July 3, 2023, October 11, 2023, October 13, 2023, October 16, 2023, October 30, 2023, November 6, 2023, December 8, 2023, January 19, 2024 (Item 1.05 only) and March 8, 2024 (Item 1.05 only); and |
• | our Definitive Proxy Statement on Schedule 14A for our 2023 Annual Meeting of Stockholders, filed with the SEC on October 19, 2023, to the extent incorporated by reference in our Annual Report on Form 10-K for the fiscal year ended June 30, 2023. |
We also incorporate by reference any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act as soon as reasonably practicable(excluding any information furnished pursuant to Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless otherwise specified in such current report) filed after we electronically file such material with, or furnish itthe date of the registration statement and prior to the SEC. Please note, however, that we have not incorporated any other information by reference from our Internet web site, other thandate on which the documents listed in this prospectus under the heading “Incorporation of Certain Information by Reference.” In addition, youexchange offers are consummated.
You may request copiesa copy of these filings, other than an exhibit to these filings unless we have specifically incorporated that exhibit by reference into this prospectus, at no cost, through our Investor Relations Department at: by writing or telephoning us at the following address:
Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052-6399 telephone:
Attention: Investor Relations
Telephone: 800-285-7772 (U.S.) or (425) 706-4400 (international), e-mail: msft@microsoft.com.
We have filed with the SEC a registration statement on Form S-4 relating to the New Notes coveredExcept as expressly provided above, no other information is incorporated by this prospectus. This prospectus is a part of the registration statement and does not contain all the information in the registration statement. Whenever a reference is made ininto this prospectus to a contract or other document of ours, the reference is only a summary and you should refer to the exhibits that are a part of the registration statement for a copy of the contract or other document.
FORMULA TO DETERMINE THE TOTAL EXCHANGE CONSIDERATION AND
EXCHANGE CONSIDERATION
Definitions:
TOTAL EXCHANGE CONSIDERATION =
40
For the avoidance of doubt, for the Existing Notes that have par call dates, if the applicable Exchange Offer Yield as determined in accordance with this prospectus is less than the contractual annual rate of interest, then such Total Consideration will be calculated based on the par call date; if the applicable Exchange Offer Yield as determined in accordance with this prospectus is higher than or equal to the contractual annual rate of interest, then such Total Consideration will be calculated based on the maturity date.
EXCHANGE CONSIDERATION =Total Exchange Consideration-Early Exchange Premium
CASH COMPONENT = Cash Payment Percent of Premium×(Total Exchange Consideration—$1,000)
FINAL PRICING TERMS OF THE EXCHANGE OFFERS
Below are the pricing terms with respect to Microsoft’s offer to exchange (the “Pool 1 Offer”) the fourteen series of notes described in the table below (collectively, the “Pool 1 Notes”) for a new series of Microsoft’s 2.921% notes due March 17, 2052 (the “New 2052 Notes”) and a cash payment, as applicable. For each $1,000 principal amount of Pool 1 Notes validly tendered and not validly withdrawn prior to the Expiration Time and accepted by the Company, the following table sets forth the yield, the Total Exchange Consideration, the principal amount of the New 2052 Notes and the amount of the cash payment, as applicable:
Pool 1 Table | ||||||||||||||||||||||||||||||||||||
Title of | CUSIP Number | Acceptance Priority Level | Reference UST Security(1) | Fixed Spread (basis points) | Yield(2) | Early Exchange Premium(3) | Total Exchange Consideration(3)(4) | Principal Amount of New Notes(5) | Cash Payment(3) | |||||||||||||||||||||||||||
4.875% Notes due 2043 | 594918AX2 | 1 | 30-year | +45 | 2.671 | % | $ | 30 | $ | 1,367.81 | $ | 1,000.00 | $ | 367.81 | ||||||||||||||||||||||
4.450% Notes due 2045 | 594918BL7 | 2 | 30-year | +50 | 2.721 | % | $ | 30 | $ | 1,304.37 | $ | 1,000.00 | $ | 304.37 | ||||||||||||||||||||||
4.250% Notes due 2047 | 594918CA0 |
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3 |
| 30-year | +55 | 2.771 | % | $ | 30 | $ | 1,268.30 | $ | 1,000.00 | $ | 268.30 | ||||||||||||||||||||
5.300% Notes due 2041 | 594918AM6 | 4 | 30-year | +30 | 2.521 | % | $ | 30 | $ | 1,432.59 | $ | 1,000.00 | $ | 432.59 | ||||||||||||||||||||||
5.200% Notes due 2039 | 594918AD6 | 5 | 30-year | +20 | 2.421 | % | $ | 30 | $ | 1,407.16 | $ | 1,000.00 | $ | 407.16 | ||||||||||||||||||||||
4.500% Notes due 2040 | 594918AJ3 | 6 | 30-year | +25 | 2.471 | % | $ | 30 | $ | 1,312.94 | $ | 1,000.00 | $ | 312.94 | ||||||||||||||||||||||
3.700% Notes due 2046 | 594918BT0 | 7 | 30-year | +52 | 2.741 | % | $ | 30 | $ | 1,172.18 | $ | 1,000.00 | $ | 172.18 | ||||||||||||||||||||||
3.750% Notes due 2043 | 594918AU8 | 8 | 30-year | +45 | 2.671 | % | $ | 30 | $ | 1,176.34 | $ | 1,000.00 | $ | 176.34 | ||||||||||||||||||||||
3.750% Notes due 2045 | 594918BD5 | 9 | 30-year | +45 | 2.671 | % | $ | 30 | $ | 1,186.84 | $ | 1,000.00 | $ | 186.84 | ||||||||||||||||||||||
3.500% Notes due 2042 | 594918AR5 | 10 | 30-year | +35 | 2.571 | % | $ | 30 | $ | 1,153.54 | $ | 1,000.00 | $ | 153.54 | ||||||||||||||||||||||
4.100% Notes due 2037 | 594918BZ6 | 11 | 30-year | +5 | 2.271 | % | $ | 30 | $ | 1,236.37 | $ | 1,000.00 | $ | 236.37 | ||||||||||||||||||||||
4.200% Notes due 2035 | 594918BK9 | 12 | 30-year | -10 | 2.121 | % | $ | 30 | $ | 1,252.63 | $ | 1,000.00 | $ | 252.63 | ||||||||||||||||||||||
3.450% Notes due 2036 | 594918BS2 | 13 | 30-year | -7 | 2.151 | % | $ | 30 | $ | 1,164.75 | $ | 1,000.00 | $ | 164.75 | ||||||||||||||||||||||
3.500% Notes due 2035 | 594918BC7 | 14 | 30-year | -15 | 2.071 | % | $ | 30 | $ | 1,166.48 | $ | 1,000.00 | $ | 166.48 |
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Below are the pricing terms with respect to Microsoft’s offer to exchange (the “Pool 2 Offer”) the four series of notes described in the table below (collectively, the “Pool 2 Notes”) for a new series of Microsoft’s 3.041% notes due March 17, 2062 (the “New 2062 Notes”) and a cash payment, as applicable. For each $1,000 principal amount of Pool 2 Notes validly tendered and not validly withdrawn prior to the Expiration Time and accepted by Microsoft, the following table sets forth the yield, the Total Exchange Consideration, the principal amount of the New 2062 Notes and the amount of the cash payment, as applicable:OFFERS TO EXCHANGE THE NOTES SET FORTH BELOW
Pool 2 Table(1) | ||||||||||||||||||||||||||||||||||||
Title of | CUSIP Number | Acceptance Priority Level | Reference UST Security(2) | Fixed Spread (basis points) | Yield(3) | Early Exchange Premium(4) | Total Exchange Consideration(4)(5) | Principal Amount of New Notes(6) | Cash Payment(4) | |||||||||||||||||||||||||||
3.950% Notes due 2056 | 594918BU7 | 1 | 30-year | +67 | 2.891 | % | $ | 30 | $ | 1,231.73 | $ | 1,000.00 | $ | 231.73 | ||||||||||||||||||||||
4.750% Notes due 2055 | 594918BM5 | 2 | 30-year | +67 | 2.891 | % | $ | 30 | $ | 1,401.56 | $ | 1,016.06 | $ | 385.50 | ||||||||||||||||||||||
4.500% Notes due 2057 | 594918CB8 | 3 | 30-year | +67 | 2.891 | % | $ | 30 | $ | 1,354.97 | $ | 1,000.00 | $ | 354.97 | ||||||||||||||||||||||
4.000% Notes due 2055 | 594918BE3 | 4 | 30-year | +67 | 2.891 | % | $ | 30 | $ | 1,236.52 | $ | 1,000.00 | $ | 236.52 |
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The aggregate principal amount of Pool 1 Notes and Pool 2 Notes of each series that are accepted for exchange will be based on the order of acceptance priority for such series, as applicable, as set forth in the tables above, up to the New 2052 Notes Issue Cap and up to the New 2062 Notes Issue Cap, respectively. Holders who validly tender the Existing Notes after the Early Exchange Time but on or before the Expiration Time will only be eligible to receive the Exchange Consideration, which equals the Total Exchange Consideration minus the Early Exchange Premium as detailed in the tables above.REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
In addition to the principal amount of New Notes and applicable cash payment specified in the tables above, holders with Existing Notes that are accepted for exchange will receive a cash payment representing (i) all or a portion of the accrued and unpaid interest to, but not including, the Settlement Date, and (ii) amounts due in lieu of any fractional amounts of New Notes, in each case, as described in this prospectus.
The Exchange Agent for the Exchange Offers is:ANY AND ALL OUTSTANDING RESTRICTED NOTES
D.F. King & Co., Inc.
For Confirmation by Telephone:
(212) 269-5552
The Information Agent for the Exchange Offers is:
D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, New York 10005
Banks and brokers: (212) 269-5550
Toll Free: (877) 864-5060
Email: microsoft@dfking.com
Website: https://www.dfking.com/microsoft
Questions or requests for assistance related to the Exchange Offers or for additional copies of this prospectus may be directed to the Information Agent at its telephone numbers and address listed above.
You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Exchange Offers.
The Joint Lead Dealer Managers for the Exchange Offers are:
The Senior Co-Dealer Managers for the Exchange Offers are:SET FORTH OPPOSITE THE CORRESPONDING REGISTERED NOTES
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The Co-Dealer Managers for the Exchange Offers are:
(CUSIP No. 594918CN2) |
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$354,793,000 3.400% Notes due 2027 (CUSIP No. 594918CQ5) | (CUSIP Nos. 594918CH5 and U59340AJ5) | ||||||
$448,585,000 1.350% Notes due 2030 (CUSIP No. 594918CS1) | (CUSIP Nos. 594918CJ1 and U59340AK2) | ||||||
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$394,262,000 4.500% Notes due 2047 (CUSIP No. 594918CU6) |
(CUSIP Nos. 594918CK8 and U59340AL0) | ||||||
$1,440,382,000 2.500% Notes due 2050 (CUSIP No. 594918CW2) | (CUSIP Nos. 594918CL6 and U59340AM8) |
PROSPECTUS
, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.Officers
Sections 23B.08.510 and 23B.08.570 of the Washington Business Corporation Act (“WBCA”WBCA”) authorizes Washington corporations to indemnify their officers and directors under certain circumstances against expenses and liabilities incurred in legal proceedings involving them as a result of their service as an officer or director. Section 23B.08.560 of the WBCA authorizes a corporation by provision in its articles of incorporation to indemnify or agree to indemnify a director made a party to a proceeding, or obligate itself to advance or reimburse expenses incurred in a proceeding, without regard to the limitations imposed by Sections 23B.08.510 through .550 of the WBCA; provided, however, that no such indemnity shall be made for or on account of (a) acts or omissions of the director finally adjudged to be intentional misconduct or a knowing violation of law, (b) conduct of the director finally adjudged to be in violation of Section 23B.08.310 of the WBCA (relating to unlawful distributions) or (c) any transaction with respect to which it was finally adjudged that the director personally received a benefit in money, property, or services to which the director is not legally entitled.
The Registrant’s Amended and Restated Articles of Incorporation require indemnification of the Registrant’s officers and directors and advancement of expenses to the fullest extent not prohibited by applicable law. The Registrant’s Amended and Restated Articles of Incorporation provide for procedures for those seeking indemnification and/or advancement of expenses. In addition, as authorized by Section 23B.08.320 of the WBCA, the Registrant’s Amended and Restated Articles of Incorporation contain a provision eliminating the personal liability of directors to the Registrant or its shareholders for monetary damages for conduct as a director, except for (a) omissions involving intentional misconduct by the director or a knowing violation of law by the director, (b) conduct violating Section 23B.08.310 of the WBCA or (c) any transaction from which the director will personally receive a benefit in money, property or services to which the director is not legally entitled.
The Registrant has established an indemnification trust (“2016 Directors’ Trust”Directors’ Trust”) to fund the Registrant’s obligations to indemnify and/or advance expenses to directors arising from their board service in the event the Registrant does not or is financially unable to provide the indemnification and/or advancement. As required by the 2016 Directors’ Trust agreement, the Registrant has funded a minimum balance of principal assets of no less than $50 million in the trust. The Registrant also has an indemnification trust (“2016 Officers’ Trust”Officers’ Trust”) that funds the Registrant’s indemnification obligations to certain past and present officers arising from their activities as such. As required by the 2016 Officers’ Trust agreement, the Registrant has funded a minimum balance of principal assets of no less than $50 million in the trust. The 2016 Directors’ Trust and 2016 Officers’ Trust are successors to certain trusts originally established in 1993, and amended from time to time, to fund Registrant’s indemnification obligations to directors and officers. The Registrant has also entered into separate indemnification agreements with certain of its directors and executive officers.
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Item 21. Exhibits and Financial Statement Schedules.Schedules
Incorporated by Reference | ||||||||||||||||||||||
Exhibit Number | Exhibit Description | Filed Herewith | Form | Period Ending | Exhibit | Filing Date | ||||||||||||||||
3.1 | Amended and Restated Articles of Incorporation of Microsoft Corporation | 8-K | 3.1 | 12/1/2016 | ||||||||||||||||||
3.2 | Bylaws of Microsoft Corporation | 8-K | 3.2 | 7/3/2023 | ||||||||||||||||||
4.1 | Indenture, dated as of May 18, 2009, between Microsoft Corporation and The Bank of New York Mellon Trust Company, N.A., as Trustee | S-3ASR | 4.1 | 10/29/2015 |
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Item 22. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC
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Incorporated by Reference | ||||||||||||||||||||||
Exhibit Number | Exhibit Description | Filed Herewith | Form | Period Ending | Exhibit | Filing Date | ||||||||||||||||
23.1 | Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1) | X | ||||||||||||||||||||
23.2 | Consent of Keith R. Dolliver, Esq. (included in Exhibit 5.2) | X | ||||||||||||||||||||
23.3 | Consent of Deloitte & Touche LLP | X | ||||||||||||||||||||
24.1 | Powers of Attorney (contained in signature page) | X | ||||||||||||||||||||
25.1 | Statement of Eligibility of Trustee on Form T-1 | X | ||||||||||||||||||||
107 | Filing Fee Table | X |
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
* | Indicates a management contract or compensatory plan or arrangement. |
Item 22. Undertakings
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
(a) | The undersigned Registrant hereby undertakes: |
(2) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(1) | to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(i) | to include any prospectus required by section 10(a)(3) of the Securities Act; |
(4) That, for the purpose of determining liability under the Securities Act to any purchaser, if the registrants are subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and
(ii) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the effective registration statement; and |
(5) that, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(iii) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(2) | that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(3) | to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; |
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section 13(a)
(4) | That, for the purpose of determining liability under the Securities Act to any purchaser, if the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or |
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made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and |
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(5) | that, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(d) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(i) | Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
(e) The undersigned registrant
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
(b) | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act), that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
(d) | The undersigned Registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. |
(e) | The undersigned Registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
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Pursuant to the requirements of the Securities Act, of 1933, as amended, the registrantRegistrant has duly caused this Amendment No. 1 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Redmond, State of Washington, on March 2, 2021.April 26, 2024.
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/s/ Satya Nadella | ||
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Name: | ||
Satya Nadella, Title: |
The undersigned directors and officers of Microsoft Corporation hereby constitute and appoint Satya Nadella, Amy E. Hood and Alice L. Jolla and each of them, any of whom may act without joinder of the other, the individual’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for the person and in his or her name, place and stead, in any and all capacities, to sign any or all amendments, including post-effective amendments, to this registration statement and supplements to this registration statement, and all other documents in connection therewith to be filed with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact as agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to the registration statement has been signed by the following persons in the capacities indicated on March 2, 2021.April 26, 2024.
Signature | Title | |
Satya Nadella |
(Principal Executive Officer) | |
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/s/ Reid Hoffman Reid Hoffman | Director | |
Hugh F. Johnston | Director | |
Teri L. List | Director | |
Catherine MacGregor | Director | |
/s/ Mark A. L. Mason Mark A. L. Mason | Director | |
/s/ Sandra E. Peterson Sandra E. Peterson | Director | |
Penny S. Pritzker | Director |
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Signature | Title | |
/s/ Carlos Rodriguez Carlos Rodriguez | Director | |
Charles W. Scharf | Director | |
John W. Stanton | Director | |
Emma Walmsley |
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| Director | |
Amy E. Hood | Executive Vice President and Chief Financial Officer (Principal Financial Officer) | |
/s/ Alice L. Jolla Alice L. Jolla | Corporate Vice President and Chief Accounting Officer (Principal Accounting Officer) |
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